Clear and Present Danger

Case: Schenck v. United States.

Case citation: Schenck v. United States, 249 U.S. 47 (1919.


Charles Schenk, then secretary of the Socialist Party of America was arrested for violating the Espionage Act of 1917 by mailing 15,000 anti-draft pamphlets in Philadelphia. The pamphlets encouraged people to reject the war philosophy and oppose America’s participation in WWI. The Espionage Act outlawed refusal of duty to the military, mainly the draft, and any other obstructionist activities. The Supreme Court ruled that certain words in certain times may cause a situation of danger to which the government has a right to prevent.

Decision: The Supreme Court affirmed Schenk's conviction. 

Test - The Clear and Present Danger Test: 

This test attempts to define the point at which normal expressions trigger harm and lose their constitutional protections.


Imminent Danger

Case: Brandenburg v. Ohio.

Case citation: Brandenburg v. Ohio, 395 U.S. 444 (1969).


Clarence Brandenburg led a KKK rally in rural Ohio where he uttered inflammatory words in the presence of TV cameras. Brandenburg vowed vengeance on "niggers" and Jews if the government, the Supreme Court and Congress continued to oppress the white race. He was convicted under the Ohio Criminal Syndicalism Statute for advocating violence and lawlessness. An Ohio appeals court upheld the conviction and the Ohio Supreme Court dismissed the appeal. On further appeal, the Supreme Court ruled that the criminal syndicalism statute was unconstitutional because it punished the mere advocacy of violence.

Decision: Reversed. 

Test - The Brandenburg Incitement Test: 

This test redefines the 'Clear and Present Danger Test'. It determines whether an advocacy is incitement, therefore lacking constitutional protection:

  1. Does the expression advocate the use of illegal force or violence?
  2. Is it directed towards actually inciting such illegal action?
  3. Would the advised conduct be imminent, or immediate?


Fighting Words

Case: Chaplinsky v. New Hampshire.

Case citation: Chaplinsky v. State of New Hampshire, 315 U.S. 568 (1942.


Walter Chaplinsky, a Jehovah Witness, was on a Rochester, N.H. street passing out pamphlets that decried organized religion . In reaction, people became restless and agitated and started blocking the streets. On being arrested, Chaplinsky called an officer ‘a goddamned racketeer’ and ‘a damned fascist”

He was convicted under a state law that banned calling out to people offensive words, names or making noises with an intend to annoy, deride or offend. Chaplinsky appealed the ensuing fine but a jury in the New Hampshire Superior Court upheld the conviction. The New Hampshire Supreme Court later upheld the conviction. The U.S. Supreme Court ruled that freedom of expression, while perverse, is not absolute and not guaranteed at all times.

Decision: The Supreme Court affirmed the conviction. 

Test - The Brandenburg Incitement Test: 

  1. Certain narrow categories of ‘fighting words’ are unprotected (including lewd, profane and libelous words).
  2. These same words do not express ideas or enhance the truth.


The Heckler's Veto

Case: Feiner v. New York.

Case citation: Feiner v. New York, 340 US 315 (1951).


Irving Feiner was making an anti-establishment speech on the streets of Syracuse, N.Y. to a racially mixed crowd of about 80 people. He later called upon African Americans to rise up in arms for equal rights and against whites. In response, the crowd got agitated, both for and against Feiner. The police, in a bid to stem violence, asked the speaker to step down from the box on which he was standing and cease speaking. Feiner refused thrice and was arrested, then convicted under a penal code that banned incitement. Two New York courts upheld the conviction. On appeal, the Supreme Court ruled that while crowd's displeasure at a speaker cannot be used to silence him/her, even under the guise of maintaining order, Feiner's statement to African Americans to rise up in arms was not protected under the constitution.

Decision: The Supreme Court affirmed the conviction. 

Test - The Brandenburg Incitement Test: 

"...the ordinary murmurings and objections of a hostile audience cannot be allowed to silence a speaker." - Chief Justice Frederick Vinson delivering the majority the opinion.


Hate Speech

Case: R. A. V. v. St. Paul.

Case citation: R. A. V. v. City of St. Paul, 505 U.S. 377 (1992).


Early on June 21, 1990, a group of white neighborhood kids burned a crudely constructed cross on the yard of an black family. The kids were charged under a Minnesota bias-motivated crime ordinance. A trial court dismissed the charge on the basis that the ordinance was overbroad. The Minnesota Supreme Court reversed the decision on the counter-argument that the ordinance was narrowly tailored and not content-based. The Supreme Court ruled that the ordinance was overbroad and displayed view-point based discrimination by forbidding certain expressions like cross burning while leaving protected other similar expressions on racial or gender equality issues.

Decision: Reversed. 

Test - Cross Burning with Intent to Intimidate: 

In 2003, The Supreme Court revisited the cross burning issue in Virginia v. Black {Virginia v. Black et al., 538 U.S. 343 (2003)}. The Court ruled that a clause of a Virginia law banning cross burning in someone's lawn or even in a public place, with an intent to intimidate, was was constitutional.

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