In 1919, The US Supreme Court in Schenck v. United States established the rule that if words create a “clear and present danger” to incite criminal activity or violence, the government has the right to prevent and punish that speech. For nearly fifty years, through wars and the Red Scare, that rule was applied largely without question. Then, in the 1969 case of Brandenburg v. Ohio, a white supremacist in Ohio, convicted for an inflammatory speech at a Klan rally, challenged his conviction saying it violated his First Amendment rights…and the Court agreed. A new test was born which has lasted for now more than 50 years. But, having been formulated in an era of much more limited media, does it still hold up today?
In this episode of Make No Law: The First Amendment Podcast from Popehat.com, host Ken White explores how the First Amendment has handled inflammatory speech, from Schenck to the current Brandenburg standard and all the way up to today. With the help of Professors David Cunningham and Richard Wilson, Ken digs into what makes the “imminent lawless action” test of Brandenburg such an important turning point in First Amendment law but also investigates whether the proliferation of online communication necessitates a renewed look at the standards set out in a “simpler” time.
Professor David Cunningham is professor and Chair of Sociology at Washington University in St. Louis.
Professor Richard Wilson is the Gladstein Distinguished Chair of Human Rights and Professor of Law and Anthropology at UConn School of Law.