>>> LeoCasey at aol.com 02/11/01 10:57PM >>>
Christopher Susi writes:
> Similarly, the supreme court has ruled that speech which is an incitement to
>
This is a combination of inconsistent, poorly understood and outdated Supreme Court rulings.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.
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CB: Leo's critique seems pretty good to me up to the last sentence. The Brandenberg standard is closer to "imminent lawless action", so it is incitement to break the law, not only violent lawbreaking. -------------------------------------------------------------------------------
Brandenburg v. Ohio, 395 U.S. 444 (1969) (USSC+)
Syllabus
Appellant, a Ku Klux Klan leader, was convicted under the Ohio Criminal Syndicalism statute for
advocat[ing] . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform
and for
voluntarily assembl[ing] with any society, group or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.
Neither the indictment nor the trial judge's instructions refined the statute's definition of the crime in terms of mere advocacy not distinguished from incitement to imminent lawless action.
Held: Since the statute, by its words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action, it falls within the condemnation of the First and Fourteenth Amendments. Freedoms of speech and press do not permit a State to forbid 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. Whitney v. California, 274 U.S. 357 , overruled.
Reversed.
Opinions