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Questions and Answers
What does the clear and present danger test relate to?
What does the clear and present danger test relate to?
- Right to bear arms
- Freedom of the press
- Religious practices
- Regulating speech (correct)
What case established the clear and present danger test?
What case established the clear and present danger test?
Schenck v. United States
The clear and present danger test was replaced by the imminent lawless action test in 1969.
The clear and present danger test was replaced by the imminent lawless action test in 1969.
True (A)
What does the bad tendency test refer to?
What does the bad tendency test refer to?
What was the outcome in the case of Dennis v. US?
What was the outcome in the case of Dennis v. US?
What is the significance of Brandenburg v. Ohio?
What is the significance of Brandenburg v. Ohio?
The valid secular policy test comes from the case _______.
The valid secular policy test comes from the case _______.
What was the main issue in the case regarding Paul Robert Cohen?
What was the main issue in the case regarding Paul Robert Cohen?
The Supreme Court has consistently protected all forms of speech.
The Supreme Court has consistently protected all forms of speech.
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Study Notes
Clear and Present Danger
- Established by Justice Oliver Wendell Holmes, Jr. in Schenck v. United States (1919).
- Allows government regulation of speech that poses a clear and present danger to public safety, particularly during wartime.
- Example: Shouting "fire" in a crowded theater is not protected speech if there is no fire.
- Replaced by the Brandenburg v. Ohio (1969) standard, which focuses on speech inciting imminent lawless action.
Schenck v. United States
- Case centered around a socialist's conviction for urging draft resistance during WWI.
- Holmes ruled that speech can be limited if it presents a clear and present danger of substantive evils.
Bad Tendency
- Defined in Abrams v. United States (1919), the bad tendency test allowed the conviction of individuals for speech with potentially harmful tendencies.
- Example: In Whitney v. California (1927), a woman was convicted for simply associating with the Communist Party.
- Ultimately overturned by the Brandenburg v. Ohio decision which emphasized imminent lawless action instead.
Dennis v. United States
- A significant case concerning the limits of free speech relating to communism and the government's ability to prosecute perceived threats.
"Screw the Draft"
- Paul Robert Cohen arrested in 1968 for wearing a jacket with the phrase in a courthouse.
- Convicted for disturbing the peace, but the case raised important questions about speech versus conduct.
- Justices had differing opinions on whether Cohen’s actions constituted protected speech under the First Amendment.
Direct Incitement
- Established by Brandenburg v. Ohio (1969).
- Sets the precedent that the government cannot punish speech unless it is directed to inciting and likely to provoke imminent lawless action.
Valid Secular Policy Test
- Determines if a policy serves a legitimate nonreligious goal, allowing legislation that may conflict with religious practices to be upheld.
- Originates from Minersville School District v. Gobitis (1940), involving Jehovah's Witnesses and flag salutation refusal.
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