4.2.12 WC: 191694 lately become —despite, perhaps even because of, the frequency and promiscuousness of its invocation — little more than a caricature of logical argumentation. From the beginning of my career as a First Amendment lawyer, I have taken aim at this analogy, both in my writings and in my cases. In my view, it is one of the least persuasive, though most influential, arguments for censorship that ever came from anyone’s pen! The case that gave rise to the “Fire!”-in-a-crowded-theater analogy— Schenck v. United States— involved the prosecution of Charles Schenck, who was the general secretary of the Socialist Party in Philadelphia. In 1917 a jury found Schenck guilty of attempting to cause insubordination among soldiers who had been drafted to fight in the First World War. He had circulated leaflets urging draftees not to “submit to intimidation” by fighting in a war being conducted on behalf of “Wall Street’s chosen few.” Schenck admitted that the intent of the pamphlet’s “impassioned language” was to “influence” draftees to resist the draft. Nothing in the pamphlet suggested that the draftees should use unlawful or violent means to oppose conscription. As Justice Holmes found: “In form at least [the pamphlet] confined itself to peaceful measures, such as a petition for the repeal of the act” and an exhortation to exercise “your right to assert your opposition to the draft.” Many of the pamphlet’s words were quoted directly from the Constitution. It would hard to . A clear case of petitioning one’s government for a redress of grievances, which is explicitly protected by the worlds of the First Amendment. Holmes also acknowledged that “in many places and in ordinary times the defendants, in saying all that was said in the circular, would have been within their constitutional rights.” “But,” he added, “the character of every act depends upon the circumstances in which it is done.” And to illustrate that truism he went on to say, “The most stringent protecti