Talk:Imminent lawless action

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I have placed two tags on this article. One requests that an expert in the field improve the article; I would do so, but I don't have the time. The other tag is because this article is mostly POV. For example, the article claims that Brandenburg v. Ohio overruled Schenck v. United States. Brandenburg expressly overruled Whitney v. California, but Brandenburg is considered to be a clarification of Schenck. In other words, there is a "clear and present danger" when someone is attempting to incite "imminent lawless action". What effect Brandenburg had on Free Speech law needs to be explained using reliable sources. SMP0328. (talk) 19:32, 1 July 2011 (UTC)

Rewrite

Imminent Lawless Action Introduction "Imminent Lawless Action" is a legal standard adopted by U.S. courts to evaluate when speech can be lawfully restricted without infringing on the First Amendment rights of the United States Constitution. This principle is primarily concerned with whether certain expressions or advocacies can lead to immediate and unlawful activities. Originating from the landmark U.S. Supreme Court case Brandenburg v. Ohio in 1969, the doctrine has become a cornerstone in American jurisprudence, striking a balance between safeguarding freedom of speech and ensuring public safety and order. In essence, the "Imminent Lawless Action" standard assesses the immediacy and likelihood of lawless conduct resulting from specific speech, determining if such speech is exempt from constitutional protection. The introduction of this standard marked a pivotal evolution in the interpretation of First Amendment rights, highlighting the dynamic nature of the U.S. legal system and its adaptability in addressing contemporary challenges. As the U.S. grappled with diverse expressions, especially during periods of social unrest and political upheaval, the "Imminent Lawless Action" principle provided a clearer criterion to discern protected speech from potentially harmful incitements.

Historical Background The conceptual roots of the "Imminent Lawless Action" standard can be traced back to earlier jurisprudential efforts to define the limits of free speech in the context of national security and public order. Central to this historical framework is the "clear and present danger" test, a judicial standard formulated during the early 20th century that sought to determine when the government could justifiably restrict speech under the First Amendment. Clear and Present Danger Test:

The "clear and present danger" test was first articulated in the case of Schenck v. United States (1919). Charles Schenck, the general secretary of the Socialist Party, had been convicted for distributing leaflets that criticized the draft during World War I. In his ruling, Justice Oliver Wendell Holmes Jr. opined that speech, akin to the act of shouting fire in a crowded theater, could be restricted if it posed a "clear and present danger" to public safety or national security. This standard became a significant touchstone in assessing the boundary between protected speech and that which could be curtailed in the interest of public safety. However, its somewhat ambiguous nature meant that it was often subjected to varied interpretations.

Whitney v. California (1927):

Building on the foundations laid by Schenck, the case of Whitney v. California further expanded the scope of speech regulation. Charlotte Anita Whitney, a member of the Communist Labor Party in California, was convicted under a state statute for aiding and abetting criminal syndicalism. The Court upheld her conviction, reinforcing the idea that states could punish those who abused their speech rights by advocating for violence or unlawful actions. The ruling emphasized that speech that carried a significant risk of causing substantial harm, even if it did not pose an immediate threat, could still be restricted.

In these early endeavors to delineate the contours of the First Amendment, the U.S. Supreme Court grappled with the tension between upholding individual liberties and ensuring societal stability. While the "clear and present danger" test and the precedents set by cases like Whitney v. California provided some clarity, they often left room for subjectivity. It was against this backdrop that the "Imminent Lawless Action" standard would later emerge, offering a more precise gauge for adjudicating on matters of free speech in contentious scenarios.

Establishment of the Standard One of the most influential landmarks in the evolution of free speech jurisprudence in the U.S. is the case of Brandenburg v. Ohio (1969). This case not only transformed how the courts perceived and treated potentially incendiary speech but also established the "Imminent Lawless Action" standard, providing a more nuanced and refined approach than its predecessors. Brandenburg v. Ohio (1969):

The crux of the Brandenburg case revolved around Clarence Brandenburg, a leader of a Ku Klux Klan faction in Ohio. He was convicted under an Ohio statute for his involvement in a KKK rally where inflammatory speeches were made, promoting the possibility of revengence against the government. Brandenburg's conviction was initially upheld by the Ohio Supreme Court on the grounds that his speech promoted unlawful actions and produced a state of mind conducive to such actions.

However, when the case reached the U.S. Supreme Court, the perspective shifted. In a unanimous decision, the Court overturned Brandenburg's conviction, introducing the "Imminent Lawless Action" test as a replacement for the more nebulous "clear and present danger" standard. The Court held that for speech to be proscribed, it must be directed at inciting or producing "imminent lawless action" and must be likely to achieve that result. This delineation was more precise, focusing not just on the content of the speech but also on its potential immediate impact. Implications for First Amendment Rights:

The Brandenburg decision underscored the robust protection the First Amendment affords to even extremist speech, provided it doesn't actively and imminently incite unlawful conduct. This ruling provided a safeguard against the overreach of state power into the realm of speech and assembly, ensuring that only speech with a direct, immediate, and likely link to unlawful activities could be curtailed.

Moreover, the "Imminent Lawless Action" standard became a testament to the U.S. judiciary's commitment to preserving a broad sphere of protected speech, even when such expressions might be controversial or unsettling. By placing a higher burden on the state to demonstrate the immediate and likely danger of speech, the Brandenburg decision fortified the First Amendment's role as a bulwark against undue state interference in matters of expression and assembly.

Key Provisions and Interpretations The "Imminent Lawless Action" test, emerging from the Brandenburg v. Ohio decision, introduced a clearer framework for gauging the constitutionality of restricting speech under the First Amendment. However, as with many legal standards, it bore its ambiguities and complexities, which subsequent cases and analyses sought to unravel. Definition of "Imminent":

Central to this standard is the term "imminent." In a legal context, "imminent" typically denotes something on the verge of happening or impending. Yet, how this immediacy translates in diverse scenarios of speech and incitement became a matter of judicial interpretation. What precisely constituted an "immediate" threat as opposed to a more distant or speculative one? This was a crucial question, for the timing of a potential lawless action in response to speech could determine its protection or restriction under the First Amendment.

Hess v. Indiana (1973):

A significant clarification to the "Imminent Lawless Action" standard came with Hess v. Indiana. In this case, Gregory Hess was arrested during a protest for saying, "We'll take the streets later (or again)." The state of Indiana interpreted this as an immediate threat of violence. However, the U.S. Supreme Court disagreed, emphasizing that Hess's words did not imply an immediate incitement to lawless action. Instead, his statement was directed at some undefined future time. This case illustrated that for speech to be restricted, the incitement to lawless activity must be not just probable but also immediate. The vagueness or potential future orientation of the incitement can render it protected speech.

Two-Pronged Test for Incitement of Imminent Lawless Action:

The Brandenburg decision distilled the standard into a two-pronged test, both of which must be met for speech to lose its First Amendment protection:

1. Intent and Immediacy: The speech must be directed at inciting or producing imminent lawless action. This criterion emphasizes not only the content and intent behind the speech but also the immediacy of the potential resultant action. 2. Likelihood: The speech must be likely to incite or produce such action. It's not enough for the speech to simply advocate for lawlessness; there must be a tangible likelihood that the speech will achieve this undesirable outcome. Together, these prongs form a stringent criterion, ensuring that only speech with a clear, immediate, and probable link to unlawful actions can be restricted, thereby preserving the robust freedom of speech and expression enshrined in the U.S. Constitution.

Impact and Importance The inception of the "Imminent Lawless Action" standard heralded a new era in the U.S. free speech jurisprudence. Its introduction addressed some of the vagueness and subjectivities of prior tests, ensuring that First Amendment rights were more rigorously protected against potential governmental overreach. Reshaping First Amendment Protections:

Prior to Brandenburg, standards like the "clear and present danger" test often left significant room for interpretation, sometimes leading to the curtailment of speech based on its content rather than its potential for real-world harm. The "Imminent Lawless Action" test, however, emphasized the tangible outcomes of speech. By focusing on the immediacy and likelihood of resulting unlawful actions, it ensured that only speech with a direct and proximate threat to public safety could be restricted.

This reframing bolstered First Amendment protections in several ways: 1. Rigorous Protection: By setting a high threshold for restricting speech, it ensured that controversial, unpopular, or even extremist views enjoyed constitutional protection as long as they did not actively incite imminent and likely lawless action. 2. Checks on Governmental Power: The standard acted as a safeguard against potential government overreach, ensuring that state power could not arbitrarily or overly restrict speech based on its content alone. 3. Clarifying Ambiguities: By focusing on concrete outcomes and providing a two-pronged test, the standard offered clearer guidelines for both legal practitioners and the public regarding the boundaries of protected speech. Notable Cases and Applications:

Over the years, the "Imminent Lawless Action" standard has been invoked and tested in various cases:

1. NAACP v. Claiborne Hardware Co. (1982): This case revolved around a boycott organized by the NAACP against white merchants. The Court ruled in favor of the NAACP, emphasizing that while their speech may have encouraged the boycott, it did not directly instigate violence or any "imminent lawless action." 2. Texas v. Johnson (1989): In a case about flag desecration, the Supreme Court ruled that burning the American flag as a form of protest was constitutionally protected speech. The act, while highly controversial, did not incite imminent lawless action. 3. Virginia v. Black (2003): Here, the Court held that while cross burning is a deeply offensive act, it is protected under the First Amendment unless it is intended to and likely to incite imminent lawless action. Each of these cases underlined the judiciary's commitment to upholding the robust protection of free speech, even in the face of controversial or unpopular expressions. The consistent application of the "Imminent Lawless Action" standard across these cases underscores its importance and enduring relevance in American constitutional law.

See Also The realm of free speech and its limits in the U.S. legal framework is vast and complex. The "Imminent Lawless Action" standard is just one pivotal element within this intricate landscape. To gain a holistic understanding of the topic, the following legal tests, cases, and concepts are also relevant: Clear and Present Danger: The legal standard prior to the establishment of the "Imminent Lawless Action" test, which aimed to determine when speech could be restricted based on potential threats to public safety or national security. Schenck v. United States (1919): The case where Justice Oliver Wendell Holmes Jr. first articulated the "clear and present danger" test. Whitney v. California (1927): An influential case that expanded upon the "clear and present danger" test, reinforcing states' rights to restrict speech advocating violence or unlawful actions. Chaplinsky v. New Hampshire (1942): A case that introduced the "fighting words" doctrine, which held that certain offensive forms of expression could be restricted by the state without violating the First Amendment. Miller v. California (1973): A pivotal case that established the Miller test for determining what constitutes obscene material not protected by the First Amendment. Tinker v. Des Moines Independent Community School District (1969): A seminal case affirming students' First Amendment rights in schools, provided their speech does not disrupt the educational process. References The following are citations and sources that provide deeper insights into the "Imminent Lawless Action" standard and related legal precedents: 1. Brandenburg v. Ohio, 395 U.S. 444 (1969): The landmark decision that introduced the "Imminent Lawless Action" standard. 2. Hess v. Indiana, 414 U.S. 105 (1973): A significant case that clarified the definition of "imminent" within the context of the "Imminent Lawless Action" standard. 3. Chemerinsky, Erwin (2011). Constitutional Law: Principles and Policies. Aspen Publishers. A comprehensive textbook that delves into the intricacies of U.S. constitutional law, including the evolution and implications of free speech doctrines. 4. Stone, Geoffrey R. (2004). Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism. W.W. Norton & Company. An in-depth exploration of the challenges to free speech during various periods of U.S. history. 5. Redish, Martin H. (2010). Freedom of Expression: A Critical Analysis. Greenwood Press. A critical examination of the philosophical, historical, and legal evolution of free speech in the United States. Doug youvan (talk) 12:11, 30 September 2023 (UTC)