I. Government Control of the Content of Expression
A. The Current Status of the Clear and Present Danger Test
1. Brandenburg v. Ohio
a. Rule: The state cannot forbid advocating the use of force or of law violation unless such advocacy: 1) is directed to producing or inciting imminent lawless action, & 2) is likely to produce or incite such action.
i. Imminent = concrete plans; more than abstract idea.
ii. Policy: political speech (market place of ideas and promote democracy)
iii. Questions needed to apply test: who spoke, format of speech, what was said, who said to
2. Constit. Law Implications of Crt’s Smith Act Interpretation
a. To convict a D for participation in advocacy or shared illegal purpose of an organization, it is required that there be proof, beyond D’s knowledge of illegal advocacy by the group; there must be proof of D’s active membership and specific intent to accomplish the organization’s illegal aims.
3. Deference to Legislative Judgment Concerning the Presence and Extent of Danger
a. Properly applied the test requires a court to make its own inquiry into the imminence and magnitude of the danger…
B. Vagueness, Overbreadth and Prior Restraint
1. Vagueness: encompasses both protected and unprotected speech.
a. Herndon v. Lowry
i. Issue: Whether the insurrection statute as construed was unconstitutional, since no clear and present danger was required for conviction?
ii. Court didn’t reach issue
iii. Void for vagueness: Now reasonable ascertainable standard of guilt is prescribed
b. Coates v. Cincinnati
le: Litigants are permitted to challenge a statute not because their own rights of free expression are violated, but because of an assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.
1. also applicable were rights of association were ensnared in statutes.
iii. Rule: Where conduct and not merely speech is involved, the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.
d. Brockett v. Spokan Arcades, Inc.
i. Rule: If the overbreadth is “substantial,” the law may not be enforced against anyone, including the party before the court, until it is narrowed to reach only unprotected activity and speech.
can be narrowed by court construction, leg. Action, or partial invalidation.