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Speech that Incites Illegal or Subversive Activity

Some speakers intend to arouse their listeners to take constructive steps to alter the political landscape. Every day in the United States people hand out leaflets imploring neighbors to write Congress, vote on a referendum, or contribute financially to political campaigns or civic organizations. For other speakers, existing political channels provide insufficient means to effectuate the type of change desired. These speakers may encourage others to take illegal and subversive measures to change the status quo. Such measures have included draft resistance during wartime, threatening public officials, and joining political organizations aimed at overthrowing the U.S. government.

The Supreme Court has held that government may not prohibit speech that advocates illegal or subversive activity unless that “advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed.2d 430 (1969). Applying the Brandenburg test, the Supreme Court has ruled that the government may not punish an antiwar protestor who yells “we’ll take the f― street later” because such speech “amounted to nothing more than advocacy of illegal action at some indefinite future time.” Hess v. Indiana, 414 U.S. 105, 94 S. Ct. 326, 38 L. Ed. 2d 303(1973). Nor could the government punish someone who, in opposition to the draft during the Vietnam War, proclaimed “if they ever make me carry a rifle, the first man I want in my sights is [the President of the United States] L.B.J.” Watts v. U.S., 394 U.S. 705,89 S. Ct. 1399, 22 L. Ed. 2d 664 (1969). Such politically charged rhetoric, the Supreme Court held, was more hyperbole and not a threat intended to be acted on at a definite point in time.

Inside Speech that Incites Illegal or Subversive Activity