> To me and most folks that I know its a figure of speech, not a reference to the actual 1919 supreme court case.
A figure of speech meaning what? Most people, AFAICT, that use it use it as an widely-perceived authoritative example of something specific that is accepted to be outside of the protection of free speech, a use that derives from and its use in the Schenk v. U.S. decision (it is sometimes explicitly described as something the Supreme Court has declared as outside of the protection of the 1st Amendment, which clearly derives from that origin.)
Of course, reliance on it for that purpose has problems because (1) it was dicta, not part of the ruling, in Schenk, and (2) Schenk is a notoriously bad decision impinging on core political speech in its specific application, and whose general rule is also no longer valid.
I have no idea what it would communicate as “a figure of speech”, and if it is actually used by some people as a figure of speech meaning something other than what it literally says being an example of unprotected speech (including, though I can see how this use would have some logic, as a figure of speech meaning “a persistently popular, despite being notoriously wrong, understanding of a legal rule”) it is one that impedes rather than promotes communication.
> it is one that impedes rather than promotes communication.
Maybe it does, but the simple truth is that the vast majority of people who use the phrase have never even heard of Oliver Wendell Holmes Jr. or his fabulous mustache and probably have no idea that it ever even went to the supreme court.
> A figure of speech meaning what?
People typically use it as a stand in for any language that might be dangerous enough to others to be curtailed. IE - Inciting a riot, or instigating a stampede that gets others killed. To use the legal phrasing from Brandenburg v. Ohio - they use it to describe language that would instigate "imminent lawless action" which WOULD still be curtailed under current law.
> Schenk is a notoriously bad decision impinging on core political speech in its specific application, and whose general rule is also no longer valid.
Schenk was mostly overturned by Brandenburg v. Ohio and in that decision justice Douglas actually specifically talks about falsely shouting fire in a crowded theater as "probably the only sort of case in which a person could be prosecuted for speech."
A figure of speech meaning what? Most people, AFAICT, that use it use it as an widely-perceived authoritative example of something specific that is accepted to be outside of the protection of free speech, a use that derives from and its use in the Schenk v. U.S. decision (it is sometimes explicitly described as something the Supreme Court has declared as outside of the protection of the 1st Amendment, which clearly derives from that origin.)
Of course, reliance on it for that purpose has problems because (1) it was dicta, not part of the ruling, in Schenk, and (2) Schenk is a notoriously bad decision impinging on core political speech in its specific application, and whose general rule is also no longer valid.
I have no idea what it would communicate as “a figure of speech”, and if it is actually used by some people as a figure of speech meaning something other than what it literally says being an example of unprotected speech (including, though I can see how this use would have some logic, as a figure of speech meaning “a persistently popular, despite being notoriously wrong, understanding of a legal rule”) it is one that impedes rather than promotes communication.