Which case established the 'imminent lawless action' test for restricting speech?

• A. Watts v. United States (1969)
• B. Yates v. United States (1957)
• C. Gitlow v. New York (1925)
• D. Brandenburg v. Ohio (1969)

Answer: (D)

The point being tested is how the First Amendment allows the government to restrict speech. Brandenburg v. Ohio (1969) established the standard that speech can be punished only if it is directed to inciting or producing imminent lawless action and is likely to produce such action. This two-pronged test protects most advocacy and expressive conduct unless the speaker is urging immediate wrongdoing and there’s a real chance it will happen.

In Brandenburg, the Court struck down an Ohio law that criminalized advocating violence, ruling that punishing mere advocacy of violence is unconstitutional unless the advocacy is aimed at causing imminent illegal activity and is likely to lead to that activity. This case thus replaced earlier, broader approaches that allowed punishment for abstract advocacy or for a broader “dangerous tendencies” rationale with the clear-imminent-action standard.

The other cases don’t establish this test. Watts involved political hyperbole that the Court treated as rhetorical rather than incitement to immediate action; Yates distinguished between abstract ideological advocacy and urging concrete action; Gitlow relied on a “dangerous tendency” approach and did not frame the speech-restriction standard around imminent action.