No, it's not. It's a false example.
The exact words from Schenck vs. US, which is where the term is originated, is "the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."
Not only could you falsely shout fire under certain circumstances, you could likewise NOT stand up in a movie theater during a film and start giving a political speech. Both examples have nothing to do with speech.
It's a poor example, and is even more odious because it was used by authoritarians on the Supreme Court to imprison an innocent man who was handing out leaflets that made a constitutional argument against a certain government policy, in this case the draft.
When people evoke the term, they are giving credence to Holmes' opinion that the government can stop someone from legal speech, simply for the fact that not all human vocalizations can be considered "free speech". You might as well make the case that no one can criticize Obama because, well, free speech isn't absolute. It's akin to saying that the government can ban firearms since the 2nd Amendment doesn't grant the right for citizens to own nuclear weapons.
It's an incoherent argument.
If you want to change the venue and circumstances of the example, for instance make it a public street, and the threat a bomb, then knock yourself out.
But Breyer is specifically using the term to hint that the government can ban Koran burning. That's just another reason to call out the complete imprudence of "fire in a crowded theater" as a legal justification.
RE: If you want to change the venue and circumstances of the example, for instance make it a public street, and the threat a bomb, then knock yourself out.
But Breyer is specifically using the term to hint that the government can ban Koran burning. That’s just another reason to call out the complete imprudence of “fire in a crowded theater” as a legal justification.
OK, let’s say that the fire-in-crowded-theater argument is out of place,and Breyer is wrong to invoke it.
What if Breyer had used the bomb-on-a-public-street argument instead ? What is to stop him from using it and if he does, what would the retort be to counter him?
In this case, why would the speech that would be disturbing the peace or be a public endangerment argument not then apply?