> Despite its history, it’s still a valid example of an exception to the First Amendment under current law.
It's not. The current standard, set by Brandenburg v. Ohio, forbids speech which advocates imminent lawless action. It is a standard much broader than the Schenk case's threshold of clear and present danger.
> The problem is that most people who cite it are using it as an analogy for something else that isn’t.
Even the man who composed the the phrase did this. Schenk's "fire in a theater" aphorism was Oliver Wendell Holmes's attempt to persuasively discredit a group of Yiddish speaking anti-war pamphleteers in his non-binding legal commentary. The comparison is not a legal analysis nor is it itself a ruling on the merits of the case.
It's not. The current standard, set by Brandenburg v. Ohio, forbids speech which advocates imminent lawless action. It is a standard much broader than the Schenk case's threshold of clear and present danger.
> The problem is that most people who cite it are using it as an analogy for something else that isn’t.
Even the man who composed the the phrase did this. Schenk's "fire in a theater" aphorism was Oliver Wendell Holmes's attempt to persuasively discredit a group of Yiddish speaking anti-war pamphleteers in his non-binding legal commentary. The comparison is not a legal analysis nor is it itself a ruling on the merits of the case.