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Brandenburg v. Ohio (1969) Hess v. Indiana (1973) Rice v. Paladin Press (1997) Introduction The incitement test first urged by Learned Hand did not become part of the Supreme Court's First Amendment jurisprudence until 1969, in the per curium decision of Brandenburg v Ohio. In reversing the conviction of a Ku Klux Klan leader who gave a speech warning "that there might have to be some revengeance taken" for "continued suppression of the white, Caucasian race," the Court held that the First Amendment allows punishment only of subversive advocacy calculated to produce "imminent lawless action" and which is likely to produce such action. Thus, Brandenburg brings together the incitement test urged by Hand and the "clear and present danger" test urged by Justices Holmes and Brandeis in their famous dissents in the 20s. The Court applied its Brandenburg analysis four years later in Hess v Indiana to reverse the conviction of a demonstrator who was overheard by a police officer to say, "We'll take the fucking street later." The Court concluded that Hess's statement, taken in context, was not aimed at producing imminent lawless conduct but rather, at the most, lawless conduct at some indefinite future time. The Court also failed to find the Brandenburg test satisfied in NAACP v Clairborne Hardware (1982). The Court found First Amendment protection for the NAACP's practice of writing down names of blacks who violated a boycott of certain white businesses, and then reading them aloud at NAACP meetings. The Court also found constitutional protection for the statement, "If we catch any of you going in any of them racist stores, we're going to break your damn neck." The Court said the statement fell short of a direct threat or ratification of violence. Rice v Paladin Enterprises
considered the First Amendment arguments of a publisher of a how-to guide
for hit men. Paladin's book, Hit Man: A Technical Manual for Independent
Contractors, was concededly used by a reader as a guide for committing
the brutal contract killing of three persons. A panel of the Fourth
Circuit Court of Appeals ruled unanimously in Rice that Brandenburg
did not bar a jury from imposing civil liability on Paladin for aiding
and abetting murder. The Fourth Circuit read Brandenburg not to
require imminence for the type of speech involved in Rice.
In 1998, the Supreme Court denied cert in Rice.
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Cover of Hit Man: A Technical Manual for Independent Contractors, the book at issue in Rice v. Paladin Press Questions 2. What if the KKK speaker had said "If the Supreme Court decides case XYZ against us, then we must assassinate all the justices that voted the wrong way"? 3. How should the "Mark Antony"-type speech be handled? (As you may know, Antony gave a famous speech arousing Romans to kill Brutus for his participation in the assassination of Caesar, but did so without ever literally suggesting that they commit murder--the suggestion was all between the lines.) 4. To be the basis of a permissible prosecution under the First Amendment is it only necessary that there be an incitement to imminent lawless action, regardless of how minor may be the infraction involved? Can, for example, a demonstrator be prosecuted for urging people to "Go trespass" or "Jaywalk now!"? 5. What does it say to you that members of the established press would lend their support to Paladin Press's First Amendment argument? Was this a triumph of ideology over common sense? 6. The full text of Hit Man is now posted on a website, accessible even by minors. Assuming that a murder could be traced to a person who downloaded information from the Hit Man website, could a civil suit or even a criminal prosecution be brought against the website author? 7. Could a prosecution be brought, consistent with the First Amendment, against a person who posts pictures and addresses of abortion doctors, compares the doctors to genocidal Nazis, and crosses out the names of of doctors who have been murdered by anti-abortion extremists? (The 9th Circuit, in a case involving the so-called "Nuremberg Files," ruled such speech protected. See Planned Parenthood v American Coalition of Life Activists, 3/28/01).
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