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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".
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.
The basic principle behind government's regulation of the bar has greater power to regulate the speech of lawyers. [77] A balancing test is employed when the Court considers attorney speech. This test weighs "the State's legitimate interest in regulating the activity in question [with] the interests of the attorney". [78]
That construction, the Supreme Court said, was plainly at odds with freedom of speech. "A function of free speech under our system of government is to invite dispute," Justice William O. Douglas ...
[1] [15] The test in Brandenburg is the current Supreme Court jurisprudence on the ability of government to punish speech after it occurs. Despite Schenck being limited, the phrase "shouting fire in a crowded theater" has become synonymous with speech that, because of its danger of provoking violence, is not protected by the First Amendment.
Therefore, while the right to assemble and protest remains protected, it may need to be exercised with caution and flexibility to balance promoting free speech and maintaining public order.
A Distant Heritage: The Growth of Free Speech in Early America. New York: New York University Press, 1995. Godwin, Mike (1998). Cyber Rights: Defending Free Speech in the Digital Age. New York: Times Books. ISBN 0-8129-2834-2. Rabban, David M. (1999). Free Speech in Its Forgotten Years, 1870–1920. New York: Cambridge University Press.
Historically, our country has celebrated our First Amendment right to free speech. Support for that fundamental right has waned, surveys show, especially with left-leaning young people who say ...