As Gabe Rottman has noted, the ‘crowded theatre’ argument is ‘worse than useless in defining the boundaries of constitutional speech’ because as a metaphor ‘it can be deployed against any unpopular speech’. The incoherence of Holmes’s position is why the decision of the court in Schenck v. United States was overruled in 1969. It is now regarded as an egregious error in judgement, which makes it a somewhat frail basis for advancing the case for censorship.
