freedom-of-speech first-amendment
Concrete example of difference between &quot;clear and present danger&quot; and &quot;imminent lawless action&quot;
<p>I was reading about the U.S. Supreme Court cases <em>Schenck v. United States</em> and <em>Brandenburg v. Ohio</em>, and I came upon two different legal standards for whether a particular act of speech was banned hate speech- whether it posed a &quot;clear and present danger&quot; of bringing about lawless action in the former, or whether it was &quot;directed to inciting or producing imminent lawless action&quot;.</p>
<p>I recognize that this is an important distinction as far as that the second is a distinctly more restrictive test for determining what is and what is not banned hate speech. However, I have not come up with any concrete example of speech that would be banned under the first test but acceptable under the second. Brandenburg's undeniably bigoted and vile speech litigated in <em>Brandenburg</em> actually seems to me acceptable under <em>Schenck</em>, as it seems to me less aimed at incitement and more just at rhetoric, but I might be wrong there- I've never seen the whole speech.</p>
<p>Any appropriate example of such speech banned under the <em>Schenck</em> test but acceptable under the <em>Brandenburg</em> test (or refutation of my refutation of a potential <em>Brandenburg</em> example) would be greatly appreciated!</p>

<p>I wouldn't worry too much about reconciling them, as <a href="https://supreme.justia.com/cases/federal/us/249/47/" rel="nofollow noreferrer"><em>Schenck</em></a> and its &quot;clear and present danger&quot; test are both basically dead.</p>
<p>When dealing with the incitement exception to First Amendment protection, the courts now apply the <em>Brandenburg</em> test, which asks whether the speech (1) &quot;is directed to inciting or producing imminent lawless action;&quot; and (2) &quot;is likely to incite or produce such action.&quot; <a href="https://supreme.justia.com/cases/federal/us/395/444/" rel="nofollow noreferrer"><em>Brandenburg v. Ohio</em>, 395 U.S. 444, 447 (1969)</a>. Although the court did not say so explicitly, Justice Douglas's concurrence essentially acknowledges that <em>Schenck</em> is no longer the law, as does Justice Stevens's dissent in <a href="https://supreme.justia.com/cases/federal/us/553/285/" rel="nofollow noreferrer"><em>United States v. Williams</em>, 553 U.S. 285, 322 (2008)</a>.</p>
<p>That said, <em>Brandenburg</em>'s requirement that the speaker <em>intended</em> to incite unlawful conduct makes it fairly easy to draw up examples to illustrate the distinction between the two standards. So if a speaker said something that posed a &quot;clear and present danger&quot; of inciting a riot, but he had no intention of causing a riot, he could be punished under <em>Schenck</em>, but not under <em>Brandenburg</em>.</p>
<p>But because &quot;clear and present danger&quot; is mostly just another way of saying the second part of the <em>Brandenburg</em> test -- &quot;likely to incite or produce such action&quot; -- anyone who could be convicted under that standard could also be convicted under <em>Schenck</em>.</p>
