I'm confused, the article seems to jump to the conclusion that the entire metaphor is invalid because of the ruling in Brandenburg v. Ohio. That doesn't make any sense to me. The metaphor still holds.
To put it another way, regardless of the ruling I still doubt a person who walks into a the same theater every day repeatedly screaming "fire" and pulling the fire alarm with malicious intent to hurt the profits of the theater would have a 1st amendment case get very far against the theater when the theater decides to throw that person out.
It's not just the ruling that was problematic, but also Oliver Wendell Holmes' often referenced grotesque metaphor.
Holmes' used the metaphor to equate criticism of the government during wartime to being so dangerous for society, specifically speaking against the draft during WWI, that it was akin to yelling fire in a crowded theatre.
Clearly, criticism of the government, especially regarding matters of war and public safety, are protected by the first amendment. Not only was the metaphor used to justify an unconstitutional ruling, but it also furthered gross misperceptions regarding limits on protected speech that are still referenced today.
I agree the metaphor was used incorrectly but I still would not say it was creating misconceptions. A better metaphor for the current day would be making prank 911 calls to the fire department when you know there is no fire. Doing this wastes taxpayer money, diverts resources away from actual emergencies and can cause real harm.
If anything, the metaphor seems to have persisted because it's applicable in so many other scenarios, not because of that one case that rarely seems to get brought up in casual discussion.
I appreciate you addressing this, because it speaks to the point.
Lies, falsehoods, misinformation and irrational statements are all protected by the first amendment. As is uttering insane and unintelligible thoughts in public.
If speech is used to further a crime or directly causes civil harm that result in damages (ex. assault or nuisance), there are existing applicable criminal and civil laws to either punish or provide a remedy.
If for example, the police were to execute a lawful warrant to search your property, it would not nullify or burden your fourth amendment protection from unreasonable searches and seizures.
Similarly, civil remedies (i.e. tort law) allowing for compensation for damages due to negligence - say from getting trampled in a crowd that was spooked by someone yelling "fire" or "shooter" - would not place limitations on your protected right of freedom to assemble.
The biggest problem with the campaign to justify censorship or moderation of misinformation/disinformation under the guise that it causes harm, is that it removes the measurable injury element of tort law and replaces it with vague and abstract notions of either mass ethereal or psychic harm (which the Supreme Court has expressing found against).
If you mean something broader than this Youtube policy then it's not clear what campaign you're referring to. Certain types of misinformation/disinformation are already considered torts because they do cause harm, e.g. defamation/slander/libel. Continuing the metaphor, in the case of Youtube it appears that among other things they don't want to host videos of people encouraging others to make prank 911 calls because it causes lawsuits, bad press and lost profits in addition to it being illegal in a lot of places.
