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Under the imminent lawless action test, speech is not protected by the First Amendment if the speaker intends to incite a violation of the law that is both imminent and likely. While the precise meaning of "imminent" may be ambiguous in some cases, the court provided later clarification in Hess v.
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".
The Supreme Court has held that "advocacy of the use of force" is unprotected when it is "directed to inciting or producing imminent lawless action" and is "likely to incite or produce such action". [8] In the early 20th century, incitement was determined by the "clear and present danger" standard established in Schenck v.
The court unanimously ruled that the law violated Brandenberg's First and 14th Amendment rights because his language would not lead to imminent lawless action. How common are anti-mask penalties?
Speech that incites imminent lawless action was originally banned under the weaker clear and present danger test established by Schenck v. United States, but this test has since been overturned by the imminent lawless action test established in Brandenburg v. Ohio.
Under Brandenburg, even advocacy of illegal conduct is constitutionally protected unless it is both "directed" at inciting "imminent lawless action" and "likely" to do so.
Under Brandenburg, even advocacy of criminal conduct is constitutionally protected unless it is "directed" at inciting "imminent lawless action" and "likely" to do so—an exception to the First ...
Ohio that: "The constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force, or of law violation except where such advocacy is directed to inciting imminent lawless action and is likely to incite or produce such action." [9]