Advocacy of illegal action

Question 1

Brandenburg Test (A conviction for incitement is constitutional if)

Answer 1

1. Imminent harm
2. Likelihood of producing illegal action
3. And, intent to cause imminent illegality.

Question 2

Importance of Brandenburg

Answer 2

This case provided an exception that allows the govt to forbid advocacy. It’s were such advocacy is directed to inciting or producing imminent lawless action and is likely to produce such action.

Question 3

Clear and present danger?

Answer 3

Whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that congress has rights to prevent.

Question 4

Clear and present danger test

Answer 4

1. Seriousness of harm (if slight, may need more)
2. Imminence (proximity)
3. Likelihood

Question 5

Bad Tendency Test

Answer 5

Tendency to incite violence could be made a crime:

1. If legislature drafted it, court will defer to it and will not step in
2. Clear and present danger not applicable where legislature has already created a law

Question 6

Holder case

Answer 6

• The giving of humanitarian aids
• They wanted to give the terrorist group aids
• Govt has right to regulate
• Read headnotes