First addressed in Whitney v. California (1927), the Supreme Court held that speech advocating illegal conduct, or the advocacy of illegal conduct, was outside the protection of the First Amendment. In Whitney, the Court upheld the conviction of Whitney for her membership and involvement with the Communist Party, holding that Whitney could be punished for speech advocating the overthrow of the U.S. government via violent methods.
Then in Brandenburg v. Ohio (1969), the Supreme Court overturned Whitney, holding that it is unconstitutional under the First Amendment to criminally punish a speaker for an abstract advocacy of illegal conduct. Only speech that is intended to, and likely to incite imminent lawless action could be punished. In holding so, the Court produced the “Brandenburg Test,” which requires that in order to punish the speaker, the speech must be intended to incite or produce imminent lawless action, and likely to incite such action.
This test was subsequently affirmed by the Court numerous times in Hess v. Indiana (1973), NAACP v. Claiborne Hardware Co. (1982), and most recently in Stewart v. McCoy (2002). In McCoy, the Court overturned an Arizona trial court’s sentencing of the defendant after he was convicted of advising members of a street gang on how to organize themselves. Justice John Paul Stevens noted in McCoy that whether the defendant’s advice incited imminent lawless action was debatable, and that “while the requirement that the consequence be ‘imminent’ is justified with respect to mere advocacy, the same justification does not necessarily adhere to some speech that performs a teaching function.”
The “Brandenburg Test” is thus the controlling precedent regarding whether speech that can be construed as advocating illegal action is protected under the First Amendment.
[Last updated in June of 2022 by the Wex Definitions Team]