I was reading about the U.S. Supreme Court cases Schenck v. United States and Brandenburg v. Ohio, and I came upon two different legal standards for whether a particular act of speech was banned hate speech- whether it posed a "clear and present danger" of bringing about lawless action in the former, or whether it was "directed to inciting or producing imminent lawless action".

I recognize that this is an important distinction as far as that the second is a distinctly more restrictive test for determining what is and what is not banned hate speech. However, I have not come up with any concrete example of speech that would be banned under the first test but acceptable under the second. Brandenburg's undeniably bigoted and vile speech litigated in Brandenburg actually seems to me acceptable under Schenck, as it seems to me less aimed at incitement and more just at rhetoric, but I might be wrong there- I've never seen the whole speech.

Any appropriate example of such speech banned under the Schenck test but acceptable under the Brandenburg test (or refutation of my refutation of a potential Brandenburg example) would be greatly appreciated!

1 Answer 1


I wouldn't worry too much about reconciling them, as Schenck and its "clear and present danger" test are both basically dead.

When dealing with the incitement exception to First Amendment protection, the courts now apply the Brandenburg test, which asks whether the speech (1) "is directed to inciting or producing imminent lawless action;" and (2) "is likely to incite or produce such action." Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). Although the court did not say so explicitly, Justice Douglas's concurrence essentially acknowledges that Schenck is no longer the law, as does Justice Stevens's dissent in United States v. Williams, 553 U.S. 285, 322 (2008).

That said, Brandenburg's requirement that the speaker intended to incite unlawful conduct makes it fairly easy to draw up examples to illustrate the distinction between the two standards. So if a speaker said something that posed a "clear and present danger" of inciting a riot, but he had no intention of causing a riot, he could be punished under Schenck, but not under Brandenburg.

But because "clear and present danger" is mostly just another way of saying the second part of the Brandenburg test -- "likely to incite or produce such action" -- anyone who could be convicted under that standard could also be convicted under Schenck.

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