Comment by mapontosevenths

> it is one that impedes rather than promotes communication.

Maybe it does, but the simple truth is that the vast majority of people who use the phrase have never even heard of Oliver Wendell Holmes Jr. or his fabulous mustache and probably have no idea that it ever even went to the supreme court.

> A figure of speech meaning what?

People typically use it as a stand in for any language that might be dangerous enough to others to be curtailed. IE - Inciting a riot, or instigating a stampede that gets others killed. To use the legal phrasing from Brandenburg v. Ohio - they use it to describe language that would instigate "imminent lawless action" which WOULD still be curtailed under current law.

> Schenk is a notoriously bad decision impinging on core political speech in its specific application, and whose general rule is also no longer valid.

Schenk was mostly overturned by Brandenburg v. Ohio and in that decision justice Douglas actually specifically talks about falsely shouting fire in a crowded theater as "probably the only sort of case in which a person could be prosecuted for speech."

So Schenk, or no Schenk... It's still illegal.

See the bottom of page 456 (PDF Warning): https://tile.loc.gov/storage-services/service/ll/usrep/usrep...