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"Imminent lawless action" is one of several legal standards American courts use to determine whether certain speech is protected under theFirst Amendment of the United States Constitution. The standard was first established in 1969 in theUnited States Supreme Court caseBrandenburg v. Ohio.[1][2]
Brandenburg clarified what constituted a "clear and present danger", the standard established bySchenck v. United States (1919) and overruled byWhitney 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 theFirst 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 Supreme Court provided later clarification inHess v. Indiana (1973), which found that Hess's words were protected under "his rights tofree 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 [inWhitney] upheld the statute on the ground that, without more, "advocating" violent means to effect 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). ButWhitney has been thoroughly discredited by later decisions. SeeDennis v. United States, 341 U.S. 494, 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]
This article incorporatespublic domain material from websites or documents of theUnited States government.
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