Mark, quite apart from his incorrect framing of the mindlessly invoked “shouting ‘fire’ in a theatre” analogy, the lame-o Lefty who questioned you was no doubt unaware that Holmes himself would not agree with it. By the end of 1919, he’d converted into a free-expression crusader — hence, his equally oft-invoked “free trade in ideas” analogy (usually referred to as “marketplace of ideas”), first explained in his dissenting opinion in Abrams v. United States. A few years ago, I wrote an essay for Commentary called “Free Speech for Terrorists?”, which focused on U-Chicago Prof. Geoffrey Stone’s engaging study of the First Amendment, Perilous Times — Free Speech in Wartime from the Sedition Act of 1798 to the War on Terror. (I have my disagreements with Geoff’s First Amendment absolutism, but it’s a mostly a terrific book.) He has a great section on Holmes’s conversion, which he largely attributes to the influence of Learned Hand.

Meanwhile, in 1989, Alan Dershowitz had a very amusing article in the Atlantic Monthly, lambasting the “shouting ‘fire’ in a theatre” tick and cataloguing the countless circumstances in which it’s been vacantly used. My favorite part is the end:

A comedian once told his audience, during a stand-up routine, about the time he was standing around a fire with a crowd of people and got in trouble for yelling “Theater, theater!” That, I think, is about as clever and productive a use as anyone has ever made of Holmes’s flawed analogy.