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"Imminent lawless action" is one of several legal standards American courts use to determine whether certain speech is protected under the First Amendment of the United States Constitution. The standard was first established in 1969 in the United States Supreme Court case Brandenburg v. Ohio.[1][2]
Brandenburg clarified what constituted a "clear and present danger", the standard established by Schenck v. United States (1919), and overruled Whitney v. California (1927), which had held that speech that merely advocated violence could be made illegal. Under the imminent lawless action test, speech is not protected by the First Amendment if the speaker intends to incite a violation of the law that is both imminent and likely. While the precise meaning of "imminent" may be ambiguous in some cases, the court provided later clarification in Hess v. Indiana (1973) in which the court found that Hess's words were protected under "his rights to free speech",[3] in part, because his speech "amounted to nothing more than advocacy of illegal action at some indefinite future time,"[3] and therefore did not meet the imminence requirement.
The two legal prongs that constitute incitement of imminent lawless action are as follows:
The Court upheld the statute on the ground that, without more, "advocating" violent means to affect political and economic change involves such danger to the security of the State that the State may outlaw it. Cf. Fiske v. Kansas, 274 U.S. 380 (1927). But Whitney has been thoroughly discredited by later decisions. See Dennis v. United States, 341 U.S. 494, at 507 (1951). These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press 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.[4]
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