Imminent Lawless Action Requirement
This is a category of speech that is not protected by the First Amendment. In Brandenburg v. Ohio, 395 U.S. 444 (1969), the Supreme Court held, "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
Brandenburg's language about "imminent lawless action" produced the "Brandenburg Test," which requires that in order to punish the speaker, the speech is:
- directed to inciting or producing imminent lawless action, and
- likely to incite or produce such action.
This "imminent lawless action" test was later reaffirmed by the Supreme Court in Hess v. Indiana, 414 U.S. 105 (1973), as the Court refused to punish speech that advocated illegal action which may take place in the indefinite future.
For more on the illegal advocacy of action, see this University of Berkeley Law Review article, this University of Indiana Law Journal article, and this University of New Hampshire Law review article.