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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".
Hess v. Indiana, 414 U.S. 105 (1973), was a United States Supreme Court case [1] involving the First Amendment that reaffirmed and clarified the imminent lawless action test first articulated in Brandenburg v. Ohio (1969). Hess is still cited by courts to protect speech threatening future lawless action. [2]
If a state seeks to impose an injunction in the face of a substantial claim of First Amendment rights, it must provide strict procedural safeguards, including immediate appellate review. Absent such immediate review, the appellate court must grant a stay of any lower court order restricting the exercise of speech and assembly rights.
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.
Ohio, the U.S. Supreme Court ruled that a statute that punishes mere advocacy and forbids, on pain of criminal punishment, assembly with others merely to advocate the described type of action, falls within the condemnation of the First and Fourteenth Amendments. Justice Louis Brandeis argued in Whitney v.
Wade with the press violated ethical norms but likely didn't run afoul of the law. Despite Republican saber-rattling about the 'lawless' leak of a draft Supreme Court opinion, experts say it's ...
Moody v. NetChoice, LLC and NetChoice, LLC v.Paxton, 603 U.S. 707 (2024), were United States Supreme Court cases related to protected speech under the First Amendment and content moderation by interactive service providers on the Internet under Section 230 of the Communications Decency Act.