Via here, this is a nice bit of history. We all know that freedom of speech is not absolute, we can not cry fire in a theater if there is no fire. Here’s where that was first used:
Schenck was the general secretary of the Socialist Party in Philadelphia during the First World War. Unlike their sister parties in Western Europe, America’s Socialists firmly opposed the war, even after the United States entered it in April 1917. That summer, Schenck and his Philadelphia comrades launched a campaign against the draft. They composed a two-sided leaflet that attacked the draft as unconstitutional and called for people to join the Socialist Party and persuade their representatives in Congress to repeal it. If the leaflet’s language was strong—“a conscript is little better than a convict…deprived of his liberty and of his right to think and act as a free man”—it was also conventional, couched in a vernacular many would have found familiar. One side proclaimed “Long Live the Constitution of the United States.” The other urged people to “Assert Your Rights!”
Schenck and his comrades made 15,000 leaflets and mailed most of them to men in Philadelphia who had passed their draft board physicals. It’s unclear how many actually received the leaflet—hundreds were intercepted by the government—and no one produced evidence of anyone falling under its influence. Even so, Schenck and four others were arrested and charged with “causing and attempting to cause insubordination…in the military and naval forces of the United States, and to obstruct the recruiting and enlistment services of the United States.” Two of the defendants—Schenck and another party leader—were found guilty. Schenck’s case was argued before the Supreme Court in January 1919, and the Court’s unanimous decision to uphold the conviction, written by Holmes, was delivered in March.
Hm, it seems to me that this should be a protected right. Anyway, the post goes on to look at this bit from Justice Holmes’ judgement:
But it is said, suppose that was the tendency of this circular, it is protected by the First Amendment to the Constitution. Two of the strongest expressions are said to be quoted respectively from well known public men. It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints, although to prevent them may have been the main purpose, as intimated in Patterson v. Colorado, 205 U.S. 454,462. 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. Aikens v. Wisconsin, 195 U.S. 194, 205, 206. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 439. 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. It is a question of proximity and degree. 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 so long as men fight, and that no Court could regard them as protected by any constitutional right. It seems to be admitted that, if an actual obstruction of the recruiting service were proved, liability
for words that produced that effect might be enforced.
It seems that Holmes might have been talking about this:
On Christmas Eve many of the striking miners and their families had gathered for a Christmas party sponsored by the Ladies Auxiliary of the Western Federation of Miners. The party was held in the second floor of Calumet’s Italian Hall. A steep stairway was the only way to the second floor, although there was a poorly-marked fire escape on one side of the building and ladders down the back of the building which could only be reached by climbing through the windows.
The tragedy began when there were over four hundred people in the room and someone yelled “Fire!”; there was none. However, people panicked and rushed for the stairs. In the ensuing melee, seventy-three people (including fifty-nine children) were killed. To date there has been much debate about who cried “fire” and why. It is conjectured that “fire” was called out by an anti-union ally of mine management in order to disrupt the party.
The article adds (the group of men was from the Citizens’ Alliance which was a lovely group):
On December 26, a group of fifteen men burst into Moyer’s hotel room. The men “piled on me like a pack of wolves,” he later testified, “kicking and striking and cursing.” A revolver accidentally went off, hitting Moyer in the back and shoulder. The men grabbed Moyer and another union official, dragged them through town to the railroad station, put them on board a train for Chicago, and warned Moyer “if you ever come back to this district again we will hang you.”
The following day, local authorities arrested the editor and several employees of the local radical Finnish newspaper Tyomies, which first publicized the accusation that the Citizens’ Alliance had caused the stampede, and charged them with “conspiracy to publish mis-statements calculated to incite riot.” Two weeks later, on January 15, 1914, the Houghton County Grand Jury indicted Moyer and 37 other unionists for participating in a conspiracy that “instituted a general strike…with the purpose and intent of causing and compelling the employees of the companies…to cease work and to shut down and prevent the operation of the mines.” Nine days after that, the same grand jury refused to indict Moyer’s attackers.
So, Holmes uses the metaphor even though no one was punished for yelling fire. On the other hand, people are punished for striking which was illegal. This also comes up in the opinion of Holmes in Gompers v. Bucks Stove & Range Co where they decided that boycotts were also illegal speech (the case was dismissed because the Bucks Stove president had died).
If you look at these cases together, you might get the idea that Holmes’ idea of Free Speech was that it didn’t apply to socialists or unions.