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Brandenburg clarified what constituted a "clear and present danger", the standard established by Schenck v. United States (1919), and overruled Whitney v. California (1927), which had held that speech that merely advocated violence could be made illegal.
Brandenburg v. Ohio, 395 U.S. 444 (1969), is a landmark decision of the United States Supreme Court interpreting the First Amendment to the U.S. Constitution. [1] The Court held that the government cannot punish inflammatory speech unless that speech is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action".
In United States law, the bad tendency principle was a test [1] that permitted restriction of freedom of speech by government if it is believed that a form of speech has a sole tendency to incite or cause illegal activity. The principle, formulated in Patterson v.
Holmes argued that this abridgment of free speech was permissible because it presented a "clear and present danger" to the government's recruitment efforts for the war. Holmes wrote: The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic... The question in every case is ...
United States (1919), in which Justice Oliver Wendell Holmes Jr. observed: "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." [9] In Brandenburg v.
Schenck v. United States, 249 U.S. 47 (1919), was a landmark decision of the U.S. Supreme Court concerning enforcement of the Espionage Act of 1917 during World War I.A unanimous Supreme Court, in an opinion by Justice Oliver Wendell Holmes Jr., concluded that Charles Schenck and other defendants, who distributed flyers to draft-age men urging resistance to induction, could be convicted of an ...
That is why freedom of speech, though not absolute, Chaplinsky v. New Hampshire, supra, 315 U.S. at pages 571-572, 62 S.Ct. at page 769, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.
Brandeis also suggested a reappraisal of the prevailing clear and present danger test, and insisted on what some have called a "time to answer" test: no danger flowing from speech can be considered "clear and present" if there is full opportunity for discussion. Brandeis argued that governments, while having a right to curb truly dangerous ...