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A Taste of Justice: 1st Amend. “Short” (39) Unprotected Speech—Speech that Advocates Illegal Action, with Professor Angela Mae Kupenda

Welcome to a Taste of Justice!

All interpretations here are my own, but for informational purposes I am a Professor at Mississippi College School of Law and I have been a professor at various law and business schools for about 30 years now.

First I want to remind you:

PURE SPEECH is protected from CONTENT REGULATION by the GOVERNMENT that is UNLESS the government meets the most exacting level of scrutiny OR UNLESS the speech is in an UNPROTECTED CATEGORY.

If the speech is in an UNPROTECTED CATEGORY, then generally the government has more leeway in regulating the speech.

There are several UNPROTECTED CATEGORIES of speech. For an overview of unprotected categories…see..
A Taste of Justice: 1st Amend. (2) Overview Unprotected Categories, Professor Angela Mae Kupenda    • A Taste of Justice: 1st Amend. (2) Overvie...  

Second I want to talk with you about the rule related to the first UNPROTECTED CATEGORY OF SPEECH--
“Speech that Advocates Illegal Action”

How do we determine if a given speech is indeed speech that advocates illegal action? What is the legal test ?

The Modern day test

The case is Brandenburg v. Ohio (1969). A member of the KKK did an interview on television with 12 hooded people. The speaker made derogatory comments about Black people. And, then said some things like: If the government continues to suppress “the white, Caucasian, race, it’s possible that there might have to be some revenge taken.” The speaker said they were marching in Congress, in Florida, and sending one group on to Mississippi.

The speaker was convicted for violating the law. He appealed arguing he had speech rights. Now, the Court actually ruled in favor of the KKK speaker. The Court stated a new test, which became the modern-day test, that for the speech to be in the unprotected category of speech that advocates illegal action, the speech must be
“advocacy directed to inciting or producing imminent lawless action AND is likely to incite or produce such action.”

One Justice wrote a concurrence, he said the historical cases were crushing the rights of ordinary people to protest. Then he pointed out that the KKK speech could not be restricted here as it was not a time of national war but it was “days of peace.”
Here is the link to my longer video on this case
A Taste of Justice: 1st Amend. (4) Unprotected-Speech Advocates Illegal Action (Modern-Brandenburg)    • A Taste of Justice: 1st Amend. (4) Unprote...  

I want to explain a bit about the historical cases that were mentioned.
In the early 1900s, individuals were punished for their speech for example
--when the speakers tried to encourage men at military recruitment centers during a mandatory draft not to enlist in military, and there was no evidence that people actually refused to serve because of the speech…the speakers were still sent to jail.
---the Court also upheld sentences of individuals who were teaching things from books easily available in the library.
--and the Court upheld the convictions of several men who threw anti-war leaflets out of the window of a tall building in New York
For more on the historical cases, here is the link to a longer video
A Taste of Justice: 1st Amend. (3) Unprotected Speech that Advocates Illegal Action-Historical Cases    • A Taste of Justice: 1st Amend. (3) Unprote...  

I want to ask if you think that over time we will leave the current test (that is more protective of speech) and go back to some of the rules that were used in the early 1900s.
Remember the modern test is Speech that Advocates Illegal Action is unprotected, but that only includes “advocacy directed to inciting or producing imminent lawless action AND is likely to incite or produce such action.”

What if the speech is advocating or supporting foreign terrorism? What if the speech is advocating domestic terrorism…terrorism from within the U.S.? Should the Court use the Brandenburg test that protected the KKK speaker or should the Court go back to the earlier cases that gave the government more leeway in labeling speech as unprotected?

You think on that question. And here is a link to discussion of a case where the Court took some of that on:
A Taste of Justice: 1st Amend. (5) Unprotected-Speech Advocates Illegal Action-Post 9/11 Brandenburg    • A Taste of Justice: 1st Amend. (5) Unprote...  

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Remember, learning is a path to enlightenment and enlightenment to freedom and freedom to justice. My goal here is to offer you a taste of learning and hence at least a taste of justice.

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See you in about a week when we will review the second category of Unprotected Speech--Defamation!!