Advocacy and incitement are two categories of speech, the latter of which is a more specific type of the former directed to producing imminent lawless action and which is likely to incite or produce such action. In the 1957 case ''

Yates v. United States ''Yates v. United States'', 354 U.S. 298 (1957), was a case decided by the Supreme Court of the United States that held that the First Amendment protected radical and reactionary speech, unless it posed a " clear and present danger." Background ...

'', Justice

John Marshall Harlan II John Marshall Harlan (May 20, 1899 – December 29, 1971) was an American lawyer and jurist who served as an associate justice of the U.S. Supreme Court from 1955 to 1971. Harlan is usually called John Marshall Harlan II to distinguish him ...

ruled that only advocacy that constituted an "effort to instigate action" was punishable. In the 1969 case ''

Brandenburg v. Ohio ''Brandenburg v. Ohio'', 395 U.S. 444 (1969), was a landmark decision of the United States Supreme Court interpreting the First Amendment to the U.S. Constitution. The Court held that the government cannot punish inflammatory speech unless that sp ...

'', the

U.S. Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...

ruled that a statute that punishes mere advocacy and forbids, on pain of criminal punishment, assembly with others merely to advocate the described type of action, falls within the condemnation of the

First First or 1st is the ordinal form of the number one (#1). First or 1st may also refer to: *World record, specifically the first instance of a particular achievement Arts and media Music * 1$T, American rapper, singer-songwriter, DJ, and rec ...

and Fourteenth Amendments. Justice

Louis Brandeis Louis Dembitz Brandeis (; November 13, 1856 – October 5, 1941) was an American lawyer and associate justice on the Supreme Court of the United States from 1916 to 1939. Starting in 1890, he helped develop the "right to privacy" concept ...

argued in ''

Whitney v. California ''Whitney v. California'', 274 U.S. 357 (1927), was a United States Supreme Court decision upholding the conviction of an individual who had engaged in speech that raised a threat to society. ''Whitney'' was explicitly overruled by ''Brandenburg v. ...

'' that "even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on."

References

{{Reflist Freedom of speech First Amendment to the United States Constitution