Ninety-three years ago, Justice Oliver Wendell Holmes wrote what is perhaps the most well-known -- yet misquoted and misused -- phrase in Supreme Court history: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." 

Without fail, whenever a free speech controversy hits, someone will cite this phrase as proof of limits on the First Amendment. And whatever that controversy may be, "the law"--as some have curiously called it--can be interpreted to suggest that we should err on the side of censorship. Holmes' quote has become a crutch for every censor in America, yet the quote is wildly misunderstood. 

But those who quote Holmes might want to actually read the case where the phrase originated before using it as their main defense. If they did, they'd realize it was never binding law, and the underlying case, U.S. v. Schenck, is not only one of the most odious free speech decisions in the Court's history, but was overturned over 40 years ago. 

The crowded theater remark that everyone remembers was an analogy Holmes made before issuing the court's holding. He was explaining that the First Amendment is not absolute. It is what lawyers call dictum, a justice's ancillary opinion that doesn't directly involve the facts of the case and has no binding authority. The actual ruling, that the pamphlet posed a "clear and present danger" to a nation at war, landed Schenk in prison and continued to haunt the court for years to come. 

Two similar Supreme Court cases decided later the same year--Debs v. U.S. and Frohwerk v. U.S.--also sent peaceful anti-war activists to jail under the Espionage Act for the mildest of government criticism. (Read Ken White's excellent, in-depth dissection of these cases.) Together, the trio of rulings did more damage to First Amendment as any other case in the 20th century. 

In 1969, the Supreme Court's decision in Brandenburg v. Ohio effectively overturned Schenck and any authority the case still carried. There, the Court held that inflammatory speech--and even speech advocating violence by members of the Ku Klux Klan--is protected under the First Amendment, unless the speech "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action" (emphasis mine).