Dennis & clear & present danger  Earlier Holmes/Brandeis version of “Clear & Present Danger”: There must be a clear & present danger of immediate & serious harm  Dennis Test: Does the gravity of the evil discounted by its improbability, justify punishment of the speech? (balance harm and likelihood/imminence)  Issues to think about:  Gov’t officials have the incentive to magnify the risk under the Dennis version  Is the c&pd test generally most appropriate for hotheaded political advocacy rather than secretive, subversive organizations  Why were Ds charged with “conspiracy to advocate overthrow of the government” rather than attempted overthrow or conspiracy to overthrow?  Would the Dennis version of the test be more appropriate for those latter charges?

Yates v. US – cutting back on Dennis  Involved the same issues as Dennis but lesser party leaders. SCT overturned Ds convictions in Yates. Justice Harlan did this by:  Interpreting Smith Act to distinguish between punishing present advocacy of action (urging someone to do something) and present advocacy of doctrine (advocating belief in something).  Arguing that Smith Act didn’t allow punishment of the latter and that Yates Ds advocated belief of violent overthrow  Harlan contrasted Yates w/ Dennis Ds who urged people to action  Harlan’s Evidentiary Problem – Yates D’s were charged with same crimes & tried on same evidence as Dennis D’s. Yates and Dennis Ds were part of same “conspiracy” and engaged in the same actions  By focusing on “content” & “facts” Harlan’s test moves away from Dennis’s “clear & present danger” approach.

Scales v. United States – freedom of association revisited  Yates made it so difficult to convict people under advocacy portions of Smith Act, gov’t pursued people under membership prong. Scales is the SCT’s last pronouncement on when gov’t can punish people for membership in an organization w/ both legal and illegal ends.  A person can be punished for membership in an organization with both legal and illegal ends if:  they are an active member  with knowledge of the organization's illegal activity,  and intent to further the organization's illegal ends.  SCT interpreted Smith Act to comply with these requirements; otherwise it would have punished association and not “personal guilt.”

Brandenburg v. Ohio (1969) Government can forbid advocacy of the use of force or of law violation only where such advocacy is: (1) directed to inciting/producing imminent lawless action, & (2) likely to incite or produce such action. 5 basic requirements 1) Intent to cause harm 2) Express advocacy of harm 3) Harm caused must be illegal 4) Harm caused must be imminent 5) Advocacy must be likely to cause harm Why isn’t D’s speech punishable under this test? Why the different test her of all times?

Possible Criticisms of Brandenburg  Does Brandenburg still fall short of protecting speech?  Douglas concurrence – appropriate line re punishment is between ideas & overt acts  Does Brandenburg protect too much speech?