(Obligatory IANAL) Under the Brandenburg v. Ohio ruling, the State can only prohibit "dangerous" speech if it is both intended and likely to incite imminent la

(Obligatory IANAL) Under the Brandenburg v. Ohio ruling, the State can only prohibit "dangerous" speech if it is both intended and likely to incite imminent lawless action. The opinion is explicitly overturning the later case of Whitney v. California but in doing so fundamentally undermines Justice Holmes' opinion in Schenck. To quote the opinion: "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." I do not think distributing pamphlets advocating resisting the draft meets this standard. EDIT: On rereading, it looks like your comment is saying that yelling fire in a crowded theater remains prohibited. I quite agree. I just think it's misleading to cite a piece of an opinion which was largely overturned as evidence for some legal position. Rather the later case law should be cited to make such an argument.