Expert: Michael Troy - 2/11/2010

Question
Hello,
In my study of various 1st amendment supreme court cases, I have come to understand that the "Imminent lawless action" standard that was determined in Brandenburg v. Ohio, continues to be the test applied in free speech cases.

I do generally agree with this test, but I also have various doubts and questions, and wanted to get a sort-of second opinion about this.

1)Do you think this test is appropriate for for 1st amendment freedom of speech cases? Or, perhaps, do you agree with previous Justices that only "speech brigaded with action" (i.e. shouting fire in a crowded theater) should be regulated by the government?

2)When it comes to the "imminent lawless action test", how imminent is imminent? That is, is there a specific time period,etc that proves imminence?

3)On a similar note, when it comes to mere advocacy of violent ideas, is that enough for the government to regulate speech? For example in Dennis v. US, was it really enough (as the majority opinion claimed) that the  communists were advocating violent overthrow of the government when the time was right, that the government had the right to regulate this speech even though there was not yet any action involved with it?

Thanks,
Shane

Answer
Generally speaking, my bias is strongly in favor of keeping government out of the speech regulation business.  Advocacy of violence should be permitted unless there is an immediate danger of "imminent lawless action."  The difference is this.  If a speaker says the people should rise up and overthrow an unjust government, that can be debated by the people who come to a reasoned decision about whether such action is necessary (as they did in 1776).  But the argument will stand or fail on its merits.  In a case where there is imminent lawless action, advocating violence is not subject to debate.  If a speaker tells a mob they should go kill some person, the mob will often act without reflecting on the consequences and do it.  I even have some concerns about punishing speech in those situations, but can understand why the Court allows it.

Imminent is left up to the court to determine, but in my mind it is where there is no real time for other speakers to bring up opposing points of view, and where listeners are expected to act on it right away.  For example, if a speaker tells a mob they have to go lynch someone, and it take a half hour to walk to the target's location, that would still be imminent in my view.

The advocacy in Dennis was not imminent.  If Communists want to call for violent overthrow of the government, that is not something that will happen right away.  People have time to reflect on the consequences, and opponents of the view have time to present counter arguments.  The only way it would come to fruition is if a large portion of the country, after careful reflection, determined that violent overthrow was the best course of action.  That seems highly unlikely.  If it did happen, one would suspect there is some terrible problem with the government that the governed simply could not accept.

- Mike