--- BklynMagus <magcomm at ix.netcom.com> wrote:
> > As J Tyler noted the reach of these laws is still
> nominally limited by Brandenburg v. Ohio (US 1968),
> >which allows proscription only of advocacy of
> illegal
> activity that rises to the level of incitement to
> crimes that are immanent.
>
> Okay, now I have a question. What makes a crime
> immanent? If some homophobe stirs up some guys to
> go
> beat up a queer and it takes 24 hours to find a
> queer,
> is that considered immanent?
Depends, could be, assuming that the crime in question is assault or maybe a state or local hate crime. Might be attempt or conspiracy as well. It's not a bright line matter. The civil libertarian in me wants to draw the line as close to the intended (not-merely-attempted or agreed-to) crime - there's a danger that if you say that it's "immanent" if the intended crime is months away that you have erased the protection afforded to abstract advocacy. In Brandenburg, the challenged speech, prosecuted under a state anti-sedition act, was a Klansman's statement at a KKK rally that "revengance shall be taken," no time specified or implied. The US S.Ct said that was abstract advocacy, so protected.
>
> > the test was, that the court must ask whether the
> gravity of the evil, discounted by its
> improbability,
> justifies such invasion of free speech as necessary
> to
> avoid the danger.
>
> Would that cover my example above?
It's a different test and much less protective. In Dennis, in the days of the high cold war, that test allowed affirmance of the convictions of the leaders of the CPSUA for conspiring to advocate the overthrow of the the US governing and conspiring to teach the desirability of the overthrow of the US government by force and violence -- elements of the Smith Act. The idea was that while not very probable, the gravity of the evil was very great, and so the proscription was constitutional.
Later CP case tests allowed for "abstract advocacy" of illegal conduct by lower ranking party members, and the Brandenberg test offered an alternative analysis. Instead of looking to the cost-benefit analysis of Dennis, the court was to look at whether there was "incitement" instead of abstract advocacy (thus, "I think all queers should be killed," as opposed to "Get that fag!" [Pointing] -- not the only example), whether the threat was immanent (not defined, but means roughly, in the reasonably near future), and whether the threat was likely. The gravity of the threat does not play into the Brandenburg analysis, putting "Let's walk on the grass right now!" (where it's unlawful) into the category of proscribable speech.
> Brian
>
>
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