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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.
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]
During colonial times, English speech regulations were rather restrictive.The English criminal common law of seditious libel made criticizing the government a crime. Lord Chief Justice John Holt, writing in 1704–1705, explained the rationale for the prohibition: "For it is very necessary for all governments that the people should have a good opinion of it."
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]
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Ohio in 1969, in which the Supreme Court held 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 or producing imminent lawless action and is likely to incite or produce such action."