This is a combination of inconsistent, poorly understood and outdated Supreme Court rulings.
The clear and present danger test comes from Shenck, and was clearly surpassed by Brandenberg. Sedition comes out of the Dennis case, which was also surpassed by Brandenberg. Under the incitement test of Brandenberg, neither Shenck [a socialist advocating draft resistance in WWI] nor Dennis [leader of the CP advocating Communist Revolution] would have had their convictions upheld. And the incitement test of Brandenberg involves not incitement to "break the law," but direct incitement to commit an act of violence.
Leo Casey United Federation of Teachers 260 Park Avenue South New York, New York 10010-7272 (212-598-6869)
Power concedes nothing without a demand. It never has, and it never will. If there is no struggle, there is no progress. Those who profess to favor freedom, and yet deprecate agitation are men who want crops without plowing the ground. They want rain without thunder and lightning. They want the ocean without the awful roar of its waters. -- Frederick Douglass --
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