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Schenck v. U.S. (1919)

Schenck v. U.S. (1919). HISTORY: Schenck: Socialist; Pamphlets to avoid draft Violates Espionage Act 1917 SCOTUS: Act is Constitutional DECISION: CLEAR AND PRESENT DANGER TEST Govt. can regulate when the words pose a “clear and present danger” to society. Brandenburg v. Ohio (1969).

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Schenck v. U.S. (1919)

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  1. Schenck v. U.S. (1919) • HISTORY: • Schenck: Socialist; Pamphlets to avoid draft • Violates Espionage Act 1917 • SCOTUS: • Act is Constitutional • DECISION: • CLEAR AND PRESENT DANGER TEST • Govt. can regulate when the words pose a “clear and present danger” to society.

  2. Brandenburg v. Ohio (1969) • HISTORY: • KKK leader arrested • Anti-black, anti-Jewish • SCOTUS: • Pro-Brandenburg • DECISION: • Abstract teaching • Not inciting “imminent lawless action.”

  3. U.S. v. O’Brien (1968) • HISTORY: • Burned his draft card • “Symbolic Speech” • Violated Selective Service Act • SCOTUS: • Pro-US • OPINION: • “Sufficiently Important Reason?” • Draft: Constitutional Right to raise an army.

  4. Texas v. Johnson (1989) • HISTORY: • Flag Burning • Texas Flag Desecration Law • SCOTUS: • Pro-Johnson • OPINION: • Tx. must prove: “Sufficiently Important Reason” • Purpose of law: • Breach of peace • Preserve symbolism • Neither is sufficiently important

  5. Tests for Free Speech Pure Speech • Government must prove that the words pose a “Clear and Present Danger” to regulate the speech. Symbolic Speech • Government must prove that it has a “Sufficiently Important Reason” to regulate the speech.

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