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In reply to the discussion: Philly buses ordered to accept ads featuring Hitler & 1941 Palestinian leader [View all]onenote
(42,700 posts)Last edited Sun Mar 15, 2015, 09:39 AM - Edit history (1)
The "falsely shouting fire in a crowded theater" example of the "clear and present danger" standard adopted by the Supreme Court in a 1919 case that ruled that passing out flyers opposing the draft during World War I was not protected by the First Amendment. Schenck v US, 249 US 47 (1919). It gave rise to a subsequent case, Whitney v. California, 274 US 357 (1927) that upheld,c citing Schenck, a law that made it illegal to engage in "utterances inimical to the public welfare, tending to incite crime, disturb the public peace, or endanger the foundations of organized government and threaten its overthrow."
Now, if the First Amendment was still that was still the law, there's a whole lot of people, myself included, who should have been prosecuted for the things we did during the Vietnam War.
Now maybe you'd have been in favor of prosecuting people like us. But I doubt it.
The fact is that the Schenck and Whitney cases pretty quickly came under criticism and even Justice Holmes, who authored the famous "fire in a crowded theater" line, retreated from such a narrow view of the First Amendment. In 1969, the Supreme Court expressly overruled Whitney, implicitly limiting Schenck with it. I recommend to you the decision in that case and, in particular, the concurring opinion of Justice Douglas. Brandenburg v. Ohio, 395 US 444 (1969).