he analogy is thus not only inapt but insulting. Most Americans do not respond to political rhetoric with the same kind of automatic acceptance expected of schoolchildren responding to a fire drill. Not a single recipient of the Schenck pamphlet is known to have changed his mind after reading it. Indeed, one draftee, who appeared as a prosecution witness, was asked whether reading a pamphlet asserting that the draft law was unjust would make him "immediately decide that you must erase that law." Not surprisingly, he replied, "I do my own thinking." A theater goer would probably not respond similarly if asked how he would react to a shout of "Fire!"
Another important reason why the analogy is inapt is that Holmes emphasizes the factual falsity of the shout "Fire!" The Schenck pamphlet, however, was not factually false. It contained political opinions and ideas about the causes of the war and about appropriate and lawful responses to the draft. As the Supreme Court recently reaffirmed (in Falwell v. Hustler), "The First Amendment recognizes no such thing as a 'false' idea." Nor does it recognize false opinions about the causes of or cures for war.
A closer analogy to the facts of the Schenck case might have been provided by a person's standing outside a theater, offering the patrons a leaflet advising them that in his opinion the theater was structurally unsafe, and urging them not to enter but to complain to the building inspectors. That analogy, however, would not have served Holmes's argument for punishing Schenck. Holmes needed an analogy that would appear relevant to Schenck's political speech but that would invite the conclusion that censorship was appropriate.
Unsurprisingly, a war-weary nation—in the throes of a know-nothing hysteria over immigrant anarchists and socialists—welcomed the comparison between what was regarded as a seditious political pamphlet and a malicious shout of "Fire!" Ironically, the "Fire!" analogy is nearly all that survives from the Schenck case; the ruling itself is almost certainly not good law. Pamphlets of the kind that resulted in Schenck's imprisonment have been circulated with impunity during subsequent wars.
he analogy is thus not only inapt but insulting. Most Americans do not respond to political rhetoric with the same kind of automatic acceptance expected of schoolchildren responding to a fire drill. Not a single recipient of the Schenck pamphlet is known to have changed his mind after reading it. Indeed, one draftee, who appeared as a prosecution witness, was asked whether reading a pamphlet asserting that the draft law was unjust would make him "immediately decide that you must erase that law." Not surprisingly, he replied, "I do my own thinking." A theater goer would probably not respond similarly if asked how he would react to a shout of "Fire!"
Another important reason why the analogy is inapt is that Holmes emphasizes the factual falsity of the shout "Fire!" The Schenck pamphlet, however, was not factually false. It contained political opinions and ideas about the causes of the war and about appropriate and lawful responses to the draft. As the Supreme Court recently reaffirmed (in Falwell v. Hustler), "The First Amendment recognizes no such thing as a 'false' idea." Nor does it recognize false opinions about the causes of or cures for war.
A closer analogy to the facts of the Schenck case might have been provided by a person's standing outside a theater, offering the patrons a leaflet advising them that in his opinion the theater was structurally unsafe, and urging them not to enter but to complain to the building inspectors. That analogy, however, would not have served Holmes's argument for punishing Schenck. Holmes needed an analogy that would appear relevant to Schenck's political speech but that would invite the conclusion that censorship was appropriate.
Unsurprisingly, a war-weary nation—in the throes of a know-nothing hysteria over immigrant anarchists and socialists—welcomed the comparison between what was regarded as a seditious political pamphlet and a malicious shout of "Fire!" Ironically, the "Fire!" analogy is nearly all that survives from the Schenck case; the ruling itself is almost certainly not good law. Pamphlets of the kind that resulted in Schenck's imprisonment have been circulated with impunity during subsequent wars.
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