Same reason you can't yell fire in a crowded theater. There are limits to freedom of speech, especially when it interferes with national defense. Schenck v. United States is an interesting case where the supreme court ruled that passing out fliers to encourage resistance to the draft is not protected by the first amendment.
I feel like you're having a kind of knee-jerk reaction to the fire example - your criticism makes sense when it is being used to justify some censorship (because legal != moral), but the GP is asking why this case isn't covered by the federal concept of free speech, literally speaking, for which the fire quote is a totally valid example of speech having negative effects that outweigh the value of that specific example of speech (regardless of whether the legal origin of the example is apocryphal, since overturned, etc).
I.e. the GP didn't ask "how is this not a violation of the spirit of free speech", they asked, "why this wouldn't fall under freedom of speech" (so it's not really "a Hackneyed Apologia for Censorship" in this case).
I read the Atlantic article, but I don't think they made a strong enough argument to justify retiring the quote. Regardless of the circumstances that it was first used, it's meaning is still very true. It is still illegal to yell fire in a crowded theater and there are many exceptions to the first amendment. An american citizen cannot verbally harass someone, they cannot share child pornography, and they cannot go around telling everyone how to make a nuclear bomb.
> A unanimous Court in a brief per curiam opinion in Brandenburg v. Ohio (1969), abandoned the disfavored language while seemingly applying the reasoning of Schenck to reverse the conviction of a Ku Klux Klan member prosecuted for giving an inflammatory speech. The Court said that speech could be prosecuted only when it posed a danger of "imminent lawless action," a formulation which is sometimes said to reflect Holmes reasoning as more fully explicated in his Abrams dissent, rather than the common law of attempts explained in Schenck.
> An american citizen cannot verbally harass someone...
They can, actually. See the quote from the wikipedia article above.
> ...they cannot go around telling everyone how to make a nuclear bomb.
_Pretty_ sure that they can. It's widely said that any physics graduate student can work out how to make a useful but basic nuke. The issue is _actually building one_, or sending the materials to construct one to a sanctioned nation.
First Amendment protections are _broad_ and exceptions to them have been (historically) carved out with _great_ reluctance. This is a feature, not a bug.
> Verbal harassment is a crime. Someone can serve a year in jail for it the state of Colorado
Would you be so kind as to link to the text of the law in question? I expect that a critical part of the law will be something along the lines of "The harasser follows around the harassed, despite requests by the harassed that the harasser desist.", which makes it more than just a restriction on speech. If it's a _pure_ restriction on speech, then I expect that it will not survive a First Amendment challenge.
States can put whatever law they like into the books. States often have laws on the books that wouldn't withstand a Constitutional challenge. For example, even after Lawrence v. Texas, anti-sodomy laws were on the books in _many_ US states. If the state doesn't voluntarily remove a law, it takes expensive, slow court challenges to get rid of them.
For a more recent example of nasty state law that is unlikely to survive long-term, look at the Texas Heartbeat Act.
The fact that a state _really_ wants to prohibit something doesn't override Federal law that asserts that that something is _not_ to be prohibited. But -sadly- those fights frequently have to slog through the courts, so they don't happen nearly as often as they should.
“ (1) A person commits harassment if, with intent to harass, annoy, or alarm another person, he or she:
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(b) In a public place directs obscene language or makes an obscene gesture to or at another person
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(2) Harassment pursuant to subsection (1) of this section is a class 3 misdemeanor; except that harassment is a class 1 misdemeanor if the offender commits harassment pursuant to subsection (1) of this section with the intent to intimidate or harass another person because of that person's actual or perceived race; color; religion; ancestry; national origin; physical or mental disability, as defined in section 18-9-121(5)(a) ; or sexual orientation, as defined in section 18-9-121(5)(b) .“
I think most people believe that the "yelling fire in a crowded theater" precedent came from an actual case about someone yelling "fire!" in a crowded theater.
As opposed to being a hypothetical situation invented to justify the use of state violence to silence anti-war protestors. No one goes around saying "you can't be against a war!" when that is the actual precedent that was set in that case.
https://en.wikipedia.org/wiki/Schenck_v._United_States