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Brandenburg v. Ohio is interesting. Technically doesn't it mean that any speech that calls for action against existing law loses protection from First Amendment

Brandenburg v. Ohio is interesting. Technically doesn't it mean that any speech that calls for action against existing law loses protection from First Amendment? I'm sure SC judges will make sane decisions for now but doesn't this door wide open for this possibility? Given most speech needing First Amendment protection is against some law, this SC decision feels very troublesome to me. Especially now that SC judges are appointed strictly to align with government, Brandenburg v. Ohio can be used for any speech against government to be deemed outside of first amendment protection. No?

javagram 7y ago
> Brandenburg v. Ohio is interesting. Technically doesn't it mean that any speech that calls for action against existing law loses protection from First Amendment? No. From the Wikipedia description of the case, “The U.S. Supreme Court reversed Brandenburg's conviction, holding that government cannot constitutionally punish abstract advocacy of force or law violation.“ The entire point of the ruling was that the government cannot punish someone for merely advocating against the law. And even dangerous speech is okay if it’s not likely to be acted on. “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.”
philwelch 7y ago
“Imminent” and “lawless” are the operable terms. I can legally opine to my hearts content about how it could hypothetically be a good idea to rob every bank in New York but if I’m not inciting anyone to actually specifically do so, that’s not legally imminent. Likewise, if I propose a series of constitutional amendments, the net effect is to legalize or legally mandate some sort of atrocity, there’s a case that I’m not even technically advocating for lawless action. But the primary value of Brandenburg v. Ohio was in rejecting the early 20th century jurisprudence based on the “clear and present danger” status set by Schenck v. United States. Schenck and the rulings that followed it gave legal cover to imprison people who advocated for draft resistance as well as effectively banning Communist parties (on the theory upheld in Whitney v. California that communism entails the violent overthrow of the US Constitution). Brandenburg and its successor cases effectively overturned that entire line of legal reasoning in favor of an extremely strict standard that only allows the government to prohibit things like inciting mobs or engaging in criminal conspiracies.

javagram 7y ago

> Brandenburg v. Ohio is interesting. Technically doesn't it mean that any speech that calls for action against existing law loses protection from First Amendment? No. From the Wikipedia description of the case, “The U.S. Supreme Court reversed Brandenburg's conviction, holding that government cannot constitutionally punish abstract advocacy of force or law violation.“ The entire point of the ruling was that the government cannot punish someone for merely advocating against the law. And even dangerous speech is okay if it’s not likely to be acted on. “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.”

philwelch 7y ago

“Imminent” and “lawless” are the operable terms. I can legally opine to my hearts content about how it could hypothetically be a good idea to rob every bank in New York but if I’m not inciting anyone to actually specifically do so, that’s not legally imminent. Likewise, if I propose a series of constitutional amendments, the net effect is to legalize or legally mandate some sort of atrocity, there’s a case that I’m not even technically advocating for lawless action. But the primary value of Brandenburg v. Ohio was in rejecting the early 20th century jurisprudence based on the “clear and present danger” status set by Schenck v. United States. Schenck and the rulings that followed it gave legal cover to imprison people who advocated for draft resistance as well as effectively banning Communist parties (on the theory upheld in Whitney v. California that communism entails the violent overthrow of the US Constitution). Brandenburg and its successor cases effectively overturned that entire line of legal reasoning in favor of an extremely strict standard that only allows the government to prohibit things like inciting mobs or engaging in criminal conspiracies.