Discuss the test developed by the U.S. Supreme Court in Brandenburg v. Ohio, explain how it relates to the bad tendency and clear and present danger tests, and describe its role in U.S. Supreme Court decision-making.

What will be an ideal response?

During World War I, the U.S. Supreme Court reasoned that speech that had a “bad tendency” could be punished by government because ordinarily harmless words could endanger the national security during times of war. The ruling in Schenck v. United States established that the protection for potentially dangerous speech varied according to the context. Gradually a growing number of justices came to believe that the bad tendency test was too lenient; it permitted government to suppress too much speech that did not endanger any important government interest. In their dissents, these justices began to argue that speech should be protected unless government could show that it presented a clear and present danger to a very important government interest. The 50-year history of the clear and present danger test demonstrates that the test was only slightly more likely than the bad tendency test to protect innocuous speech. Like its predecessor, the clear and present danger test was flexible, subjective, and extremely responsive to political realities or social concerns. In 1969, the Court attempted to resolve this problem by adopting a new test that drew a bright line distinction between simply advocating violence as an abstract concept and inciting imminent illegal or violent activity. In Brandenburg v. Ohio, the Supreme Court ruled that the First Amendment protects the right to advocate but not to incite violence. Speech that incites, prompts, or provokes immediate violence is not protected by the First Amendment. The Court ruled that the First Amendment protects people’s right to advocate abhorrent ideas about social, political, and economic change. The teaching and expression of abstract philosophies, even those that embrace or advise the necessity of violence, are protected free speech. To ensure that government did not intrude upon this protected speech, the Court said government could not forbid or punish the advocacy of force unless the advocacy (a) is directed to and (b) is likely to (c) incite or produce imminent lawless action. The Brandenburg decision established that government may punish criticism of government or advocacy of radical ideas only when speakers intentionally incite immediate illegal activity. That remains the rule today.