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"Imminent lawless action" is one of several legal standards American courts use to determine whether certain speech is protected under the First Amendment of the United States Constitution. The standard was first established in 1969 in the United States Supreme Court case Brandenburg v. Ohio. [1] [2]
Brandenburg clarified what constituted a "clear and present danger", the standard established by Schenck v. United States (1919), and overruled Whitney v. California (1927), which had held that speech that merely advocated violence could be made illegal. 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. Indiana (1973) in which the court found that Hess's words were protected under "his rights to free speech", [3] in part, because his speech "amounted to nothing more than advocacy of illegal action at some indefinite future time," [3] and therefore did not meet the imminence requirement.
The two legal prongs that constitute incitement of imminent lawless action are as follows:
The Court upheld the statute on the ground that, without more, "advocating" violent means to affect political and economic change involves such danger to the security of the State that the State may outlaw it. Cf. Fiske v. Kansas , 274 U.S. 380 (1927). But Whitney has been thoroughly discredited by later decisions. See Dennis v. United States , 341 U.S. 494, at 507 (1951). These later decisions have fashioned the principle 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. [4]
Clear and present danger was a doctrine adopted by the Supreme Court of the United States to determine under what circumstances limits can be placed on First Amendment freedoms of speech, press, or assembly. The test was replaced in 1969 with Brandenburg v. Ohio's "imminent lawless action" test.
Fighting words are written or spoken words intended to incite hatred or violence from their target. Specific definitions, freedoms, and limitations of fighting words vary by jurisdiction. The term fighting words is also used in a general sense of words that when uttered tend to create a verbal or physical confrontation by their mere usage.
Schenck v. United States, 249 U.S. 47 (1919), was a landmark decision of the US Supreme Court concerning enforcement of the Espionage Act of 1917 during World War I. A unanimous Supreme Court, in an opinion by Justice Oliver Wendell Holmes Jr., concluded that defendants who distributed flyers to draft-age men urging resistance to induction could be convicted of an attempt to obstruct the draft, a criminal offense. The First Amendment did not protect the defendants from prosecution, even though, "in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done." In this case, Holmes said, "the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." Therefore, the defendants could be punished.
Dennis v. United States, 341 U.S. 494 (1951), was a United States Supreme Court case relating to Eugene Dennis, General Secretary of the Communist Party USA. The Court ruled that Dennis did not have the right under the First Amendment to the United States Constitution to exercise free speech, publication and assembly, if the exercise involved the creation of a plot to overthrow the government. In 1969, Dennis was de facto overruled by Brandenburg v. Ohio.
Brandenburg v. Ohio, 395 U.S. 444 (1969), was a landmark decision of the United States Supreme Court interpreting the First Amendment to the U.S. Constitution. 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". Specifically, the Court struck down Ohio's criminal syndicalism statute, because that statute broadly prohibited the mere advocacy of violence. In the process, Whitney v. California (1927) was explicitly overruled, and doubt was cast on Schenck v. United States (1919), Abrams v. United States (1919), Gitlow v. New York (1925), and Dennis v. United States (1951).
Whitney v. California, 274 U.S. 357 (1927), was a United States Supreme Court decision upholding the conviction of an individual who had engaged in speech that raised a threat to society. Whitney was explicitly overruled by Brandenburg v. Ohio in 1969.
Abrams v. United States, 250 U.S. 616 (1919), was a decision by the Supreme Court of the United States upholding the 1918 Amendment to the Espionage Act of 1917 which made it a criminal offense to urge the curtailment of production of the materials necessary to wage the war against Germany with intent to hinder the progress of the war. The 1918 Amendment is commonly referred to as if it were a separate Act, the Sedition Act of 1918.
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), was a landmark decision of the US Supreme Court in which the Court articulated the fighting words doctrine, a limitation of the First Amendment's guarantee of freedom of speech.
"Shouting fire in a crowded theater" is a popular analogy for speech or actions made for the principal purpose of creating panic. The phrase is a paraphrasing of Justice Oliver Wendell Holmes, Jr.'s opinion in the United States Supreme Court case Schenck v. United States in 1919, which held that the defendant's speech in opposition to the draft during World War I was not protected free speech under the First Amendment of the United States Constitution. The case was later partially overturned by Brandenburg v. Ohio in 1969, which limited the scope of banned speech to that which would be directed to and likely to incite imminent lawless action.
Masses Publishing Co. v. Patten, 244 F. 535, was a decision by the United States District Court for the Southern District of New York, that addressed advocacy of illegal activity under the First Amendment.
Feiner v. New York, 340 U.S. 315 (1951), was a United States Supreme Court case involving Irving Feiner's arrest for a violation of section 722 of the New York Penal Code, "inciting a breach of the peace," as he addressed a crowd on a street.
In U.S. law, the bad tendency principle is a test which permits restriction of freedom of speech by government if it is believed that a form of speech has a sole tendency to incite or cause illegal activity. The principle, formulated in Patterson v. Colorado, (1907) was seemingly overturned with the "clear and present danger" principle used in the landmark case Schenck v. United States (1919), as stated by Justice Oliver Wendell Holmes, Jr. Yet eight months later, at the start of the next term in Abrams v. United States (1919) the Court again used the bad tendency test to uphold the conviction of a Russian immigrant who published and distributed leaflets calling for a general strike and otherwise advocated revolutionary, anarchist, and socialist views. Holmes dissented in Abrams, explaining how the clear and present danger test should be employed to overturn Abrams' conviction. The re-emergence of the bad tendency test resulted in a string of cases after Abrams employing that test, including Whitney v. California (1927), where a woman was convicted simply because of her association with the Communist Party. The court ruled unanimously that although she had not committed any crimes, her relationship with the Communists represented a "bad tendency" and thus was unprotected. The "bad tendency" test was finally overturned in Brandenburg v. Ohio (1969) and was replaced by the "imminent lawless action" test.
Terminiello v. City of Chicago, 337 U.S. 1 (1949), was a case in which the Supreme Court of the United States held that a "breach of peace" ordinance of the City of Chicago that banned speech that "stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance" was unconstitutional under the First and Fourteenth Amendments to the United States Constitution.
Kunz v. New York, 340 U.S. 290 (1951), was a United States Supreme Court case finding a requirement mandating a permit to speak on religious issues in public was unconstitutional. It was argued October 17, 1950, and decided January 15, 1951, 8–1. Chief Justice Vinson delivered the opinion for the Court. Justice Black and Justice Frankfurter concurred in the result only. Justice Jackson dissented.
Speech crimes are certain kinds of speech that are criminalized by promulgated laws or rules. Criminal speech is a direct preemptive restriction on freedom of speech, and the broader concept of freedom of expression.
In the United States, some categories of speech are not protected by the First Amendment. According to the Supreme Court of the United States, the U.S. Constitution protects free speech while allowing limitations on certain categories of speech.
Communist Party of Indiana v. Whitcomb, 414 U.S. 441 (1974), was a United States Supreme Court case based on the First Amendment to the U.S. Constitution that invalidated Indiana's loyalty oath requirement.
Advocacy and incitement are two categories of speech, the latter of which is a more specific type of the former directed to producing imminent lawless action and which is likely to incite or produce such action. In the 1957 case Yates v. United States, Justice John Marshall Harlan II ruled that only advocacy that constituted an "effort to instigate action" was punishable.
Hess v. Indiana, 414 U.S. 105 (1973), was a United States Supreme Court case 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.
Hate speech in the United States cannot be directly regulated by the government due to the fundamental right to freedom of speech protected by the Constitution. While "hate speech" is not a legal term in the United States, the U.S. Supreme Court has repeatedly ruled that most of what would qualify as hate speech in other western countries is legally protected free speech under the First Amendment. In a Supreme Court case on the issue, Matal v. Tam (2017), the justices unanimously reaffirmed that there is effectively no "hate speech" exception to the free speech rights protected by the First Amendment and that the U.S. government may not discriminate against speech on the basis of the speaker's viewpoint.
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