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Samuel Martinez
Samuel Martinez

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Somewhat less stringent rules have been applied where the speech is of such a character as to lead to concern that it will provoke violence or other violation of a valid law. Many of the Supreme Court decisions have involved issues of this nature, and a series of legal doctrines emerged. In the earlier cases, mostly growing out of legislation designed to prevent interference with the conduct of World War I or to suppress emerging radical political parties, the Court adopted a bad tendency test under which any speech that had a tendency to cause a violation of law could be punished. Such a test, of course, gives very little protection to nonconforming speech. Subsequently, on the initiative of Justices Holmes and louis d. brandeis, the Court accepted the clear and present danger test. Under this doctrine speech could be penalized only when it created a clear and present danger of some significant evil that the government had a right to prevent. In some cases the Court has used an ad hoc balancing test, by which the interest in freedom of speech is balanced against the social interest in maintaining order. Ultimately the Court appears to have settled upon the so-called Brandenburg test. "[T]he constitutional guarantees of free speech and free press," the Court said in Brandenburg v. Ohio, "do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." An approach which attempts to separate "speech" from "action" and gives full protection to speech has never appealed to a majority of the Justices. But the Court has progressively tightened the originally loose restrictions on the government's power to punish militant political rhetoric.




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