The article is here; the Introduction:
Over one hundred years ago, in Schenck v. United States, Justice Oliver Wendell Holmes created a meme.
Holmes wanted to illustrate why freedom of speech was not—and could never be—absolute. "The most stringent protection of free speech," Holmes wrote, "would not protect a man in falsely shouting fire in a theatre and causing a panic." This was because, Holmes explained, "[t]he 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." A false cry of fire in a theater, he implied, surely posed this kind of clear and present danger.
It might have surprised Holmes to know that more than a century later, his claim about the constitutionality of false cries of fire in theaters has become one of the most famous hypotheticals in American constitutional law. And it has acquired a remarkable significance in debates about speech regulation. On a near-daily basis, the fire meme is invoked to support restricting a wide variety of speech, from health misinformation, to former presidents' social media posts, to Tucker Carlson's television show.
In response to these near-constant invocations of the hypothetical, many have suggested that the meme should be struck from our lexicon in conversations about free speech. These arguments typically come in three forms.
