LAW 532-001 – Constitutional Law II

Inflammatory Speech


Masses Test

The Masses test, although never adopted adopted by the Supreme Court, held that speech directly advocating criminal activity is unprotected. It does not matter how likely, serious, or imminent the crime would be.

Clear and Present Danger

The clear and present danger test is not followed anymore, but it used to be the test for whether or not speech could constitutionally be prohibited.

The clear and present danger test says that the government may punish speech that is intended to produce, or of which the natural and probable effect is to create, a danger of a likely, imminent, and serious crime.

The Court will defer to Congress what constitutes a clear and present danger.

Brandenburg Test

The Brandenburg test is the current test for what inflammatory speech Congress can prohibit. It requires advocacy directed to inciting or producing imminent lawless action and that is likely to incite or produce such action.

Discuss all three on a test.