Although Powe was unaware of it, there already was something better. Powe had plausibly assumed that Justice Holmes had invented the theater analogy in Schenck, but this assumption was incorrect. The analogy was first used in the 1918 Cleveland trial of socialist Eugene Debs for violations of the Espionage Act. The prosecuting United States Attorney, Edwin Wertz, argued to the jury that “a man in a crowded auditorium, or any theatre, who yells ‘fire’ and there is no fire, and a panic ensues and someone is trampled to death, may be rightfully indicted and charged with murder.” Wertz’s use of this analogy had been largely forgotten by constitutional historians, but it was noted in a 1919 book about Eugene Debs and discussed in a 1987 article in the Indiana Magazine of History.
It is a very interesting paper and amazingly easy to read. Not only the legal part, but the historical facts behind the expression are enlightening.
Many thanks to scrappycrow for sharing the link with us.