No, the theater example isn’t a metaphor – it’s an example used to illustrate the general principle which Holmes then applies to the question before him. Moreover it’s meant as a particularly clear and stark example of the general principle.

The only point of the example is to show how a harm (persons being trampled as a result of panic) can clearly, foreseeably, and immediately result from speech (shouting fire). The First Amendment, Holmes asserts, does not protect such speech, in accordance with a general principle that Holmes announces, the clear and present danger test.

The harms that Congress may constitutionally act to prevent have nothing to do with whether a harm is “alien” or whether the nation as a whole is fully agreed upon what the harm is. Indeed, far from holding to an illusion that there is a unity of nation on views of what is harmful and what is not, or that there needs to be one, Holmes strongly argues elsewhere that there is no such unity, that it is a mistake to suppose there is, and that the Constitution is designed to allow for these diverse views. Holmes writes in his dissent in Lochner, for example, “I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law.”

What is interesting about the case, especially as it concerns on going war-time law, is Holmes’ dependence upon the tacit intentions of Schenk, et al. :

Of course, the document would not have been sent unless it had been intended to have some effect, and we do not see what effect it could be expected to have upon persons subject to the draft except to influence them to obstruct the carrying of it out…. If the act (speaking, or circulating a paper), its tendency, and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime.

To Holmes, Schenk et al want or a reasonable person may conclude that they want, to interfere with conscription, based on what they have written, how they disseminated it and how it could be interpreted, in time of war, which is barred by the Espionage Act (“Whoever, when the United States is at war, … shall wilfully obstruct the recruiting”). If it had been peacetime, the Espionage Act would not apply, and no conspiracy or crime would have occurred (“When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured…”). Holmes is stating that in circumstances of wartime, “verbal acts” (a la Gompers v. Bucks Stove & Range Co. , which he cites) like mailing pamphlets to draftees calling the draft unconstitutional and exhorting them to “assert their rights” is a criminal conspiracy.

Corey is correct, however, that an element of unity in the face of danger underlies Holmes’ decision Nonetheless, it is only an element. Rather, the Court is asserting inherent rights of the government: Congress has a power to declare war, draft citizens, and prohibit interference with recruitment during the war, including attempts to interfere with it. What Holmes is willing to ban is not political speech per se but political speech uttered with the intent to persuade others to engage in acts that the government can rightly prohibit when such acts could cause harms. This is why Salem’s truth v. falsehood distinction is so important.

That’s completely backwards. Constitutional rights depend exactly on what a Judge likes or doesn’t like, and nothing else. What “free speech” means is that the police can’t stop you from distributing your leaflets, unless a judge says they can.

And if you don’t like that, your only legal recourse is to find another judge, of a higher level, that overrules that judge. This Holmes guy was a Supreme Court Justice, which means, for all intents and purposes, God. Or rather a god, one of the 9.

One important one that hasn’t really been mentioned is that where speech is banned under the rubric of ‘acts of incitement’ as in the case mentioned, it’s generally supposed – in central cases at least – that the thing that’s incited is some kind of criminal conduct. (This idea, if cogent, would be an example of the point I often make, that culpability does not c0me in fixed quantities – unlike (non-exemplary) damages in tort, where a novus actus interveniens principle makes sense in deciding who is to pay them.) In the case of the false alarm example (FAE), the ill-effect is not the commission of a crime.

Another, which may be implicated in the FAE, is that the speech is not really communicative, or at least doesn’t function to support deliberation and discussion, but instead provokes a reflex or other unconsidered response. (I suppose at the limit we could end up using an example such as causing an avalanche by talking loudly.) This may also be part of the idea of ‘fighting words’ that crops up in some 1st Amendment cases, and seems to me one of the more plausible reasons for limiting speech.

A third idea, or rather cluster of ideas, is immediacy/specificity/imminence/certainty. Of these aspects, only the first two seem suited to a general rule, at least where the restriction on speech is supposed to be based on incitement-by-advocacy. It seems odd at least that there might be two cases of persuasive speech which differ only in the imminence or certainty of their ill-effects and that on that basis only one of them should be suppressible/punishable. An anodyne statement might in the right circumstances act as a catalyst for simmering resentments to tip over into violence, while a virulent attempt at rabble-rousing might fall on deaf ears for reasons unknown to its author. This kind of test seems to introduce too much arbitrary and unclear factual content into the issue for it to figure in a well-formed, prospective and promulgable rule. One might also try more contrived, trolleological, counterexamples like ‘Mutiny, but not until next year’, or ‘not unless the dice-roll says so’. Immediacy (of effect or intended effect) and, especially, specificity (of content or intended effect) seem better suited to the task of justifying limitations on speech, since this starts to look like procurement as a kind of participation in a conspiracy (or perhaps the doubly-inchoate ‘attempt to conspire’). A call to commit an offence, supplying sufficient particulars, might be compared to a unilateral contract: whoever answers the call completes the conspiracy.

Finally, the issue of untruth (or mendacity) – I’d disagree with Salem on this point: falsehood doesn’t seem essential. If, for example, I go round the pubs on the estate (‘project’?) of a Saturday night and start handing out leaflets giving the name, address of a convicted child-molester and provide graphic particulars (just to lay it on thick, perhaps I also mention the location of an unsecured building site in which bricks can be found) then I might well be adjudged culpable, even criminally culpable, for having incited the resulting carnage. (Where imperatives/hortatory optatives/etc. are concerned, untruth or mendacity don’t seem even to arise as issues, though this is perhaps beside the point here.) Others have speculated above that the FAE might still work (though the TLA wouldn’t) even if there really were a fire, though I’m not so sure about that – certainly in these days when the much-maligned Health and Safety holds such sway, all the fault for a lethal crush would tend to fall on the proprietor of the hall, for providing inadequate vomitoria, or on any person who had blocked fire escapes etc.: it is generally assumed that raising the fire alarm will not cause a deadly stampede.

In the context of the Calumet fire, the shouter certainly would be “the universal enemy” to anyone with any moral sense regardless of their sympathies concerning the strike and the union. As shown by the anti-union group’s attempt to provide donations to the survivors, falsely shouting fire can be universally condemned because it threatens all by introducing a category of threats into a conflict that may be used against any side, and that will also prove lethal to those who are not parties to the conflict, such as children seeking presents from Santa Claus.

I do note the restriction that Holmes offers: when a nation is at war…. but if you just make it a perpetual War, on drugs or terrorism, for example, then you can just round up people at any time for saying anything that you dont like and, when asked, just say you heard them say “fire!”

You’re welcome.

I don’t think so. There is no such thing as “the constitutionality of the draft” in abstract. It could be, at some point, declared unconstitutional by the court, and then … well, it wouldn’t need any obstructing after that. But until that time, by obstructing it you’re bringing about substantive evils.

“It would suggest that any wrong claim re unconstitutionality is the equivalent of a false claim of fire… Again, the issue is the context”

I agree that part of the issue is the context. But the metaphor works perfectly for this; it is quite acceptable to call up the Fire Brigade and report a fire you genuinely believe exists, even if later it turns out you were mistaken. If Schenck had limited himself to challenging the constitutionality of the draft through the courts, or even to purely democratic campaigning, he would likely have been OK. But the courts thought (and if we are honest, we must concede) that Schenck’s speech indicated it was trying to engender civil disobedience. Hence “in a crowded theatre.” See the lines immediately above the famous quote:

“We admit that, in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done.” (emphasis mine)

“Again, the issue is the context, not the truth or falsity of the claim, which he nowhere discusses in the opinion. The reason he inserted that “falsely” in the discussion of shouting fire has much less to do with his view of the constitutionality of the draft than his view of the law of criminal attempts”

But the issue of the draft’s constitutionality was not before the court. The Selective Draft Law Cases had already been decided (unanimously) the previous year. If the draft had been held unconstitutional, the metaphor would be completely inapposite (and indeed, Schenck’s conviction would have been reversed). The “falsely” is absolutely key to the metaphor; Holmes writes:

“The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” (emphasis mine)

Clearly, if these are not evils that Congress has any right to prevent then this question must be answered in the negative. The very notion that obstructing the draft can be a crime rests on the constitutionality of the draft in the first place, and although that question was not before the court, it underlies Holmes’s analysis. Someone who sees a fire in a crowded theatre and attempts to warn his fellow patrons is not obviously a wrongdoer.

Okay, but I would replace “is so outrageous” with “is so far removed from any non-outrageous interpretation of the rule” to emphasize what triggers the outrageousness. The intensely complicated trick is to construct a test such that this usually happens (and then get the test into usage/precedent).