From: John K Clark (johnkc@well.com)
Date: Tue Jun 24 1997 - 14:02:31 MDT
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Somebody mentioned that bit about yelling fire in a crowded theater, I said:
That cliche originally came from the American jurist Oliver Wendell Holmes
(1841-1935), he used it in one of his decisions that upheld the conviction
of a man imprisoned for saying America should not be in the First World War.
Years later Holmes said it was the worst decision he made in his entire
legal career and he cringed whenever he heard somebody quoting his famous
saying.
Several have written me asking for a source. The decision was called
"Schenck vs United States" and came out in 1919, you can read about it on
page 942 of "The Oxford Companion To The Supreme Court" edited by Kermit L
Hall.
On page 422 of the book "Justice Oliver Wendell Holmes" by G Edward White is
a letter Holmes wrote to a friend talking about this and several similar
decisions he wrote:
"I greatly regretted having to write them and, between ourselves, that the
government pressed them".
In another letter he expressed his sorrow, and I don't think guilt would be
too strong a word, that Schenck was still in jail:
"I hope the president will pardon him and some other poor devils I have
more sympathy"
It's ironic that in his day Holmes was one of the leading advocates of free
speech but today his most remembered saying is used by those who wish to
stifle it.
John K Clark johnkc@well.com
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