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The phrase refers to a quote from Justice Oliver Wendell Holmes, Jr.'s opinion in the case Schenck v. United States, 249 US 47 (1919), a Supreme Court case that explored the limits of First Amendment protection of free speech.

The exact quote is: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."

Holmes point was that there is no absolute right of free speech, because there are always circumstances in which unregulated expression can create problematic or dangerous situations. The need for safeguarding the public (or, in the case of Schenck, the government) against certain forms of speech creates exceptions that are not protected by the First Amendment. "Falsely shouting fire in a theatre" is an example illustrating Holmes' point.

Another quote from Schenck that further clarifies the Court's position: "Words which, ordinarily and in many places, would be within the freedom of speech protected by the First Amendment may become subject to prohibition when of such a nature and used in such circumstances a to create a clear and present dangerthat they will bring about the substantive evils which Congress has a right to prevent. The character of every act depends upon the circumstances in which it is done."

The "clear and present danger" test became the standard against which exercise of certain First Amendment rights were measured. The Court later relaxed these restrictions in a series of cases that culminated in the current restriction, defined in Bradenburg v. Ohio, 395 US 444 (1969). In Bradenburg, the Court held a person could not be punished for using offensive or infammatory language, but only by inciting "imminent lawless action," with "lawlessness" being a likely outcome of the speech.

In the Per Curiam opinion for Bradenburg, the Court wrote: "These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

Justice William O. Douglas concurred, repeating another quote from Justice Holmes: "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."

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โˆ™ 2009-11-26 01:13:22
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