Way you were giving a speech and you've been arrested for public safety hazard
or something.
And ultimately it's up to the courts to decide whether or not it was okay to
silence you. So the court would be balancing your freedom of speech against
and interest like public safety. When the court like the Supreme Court
is making this determination -- which one is more
important in any given situation. The courts use what are called tests or free
speech tests.
And we're gonna talk about three free speech tests
that the Supreme Court has created and used to help them make that
determination. The first test is called "clear and present danger."
Clear and present danger says that the government may suppress free speech based on three
different conditions,
what the court calls prongs; this is called a three pronged test, and it asks
basically three questions, and if the answer is yes to all three questions
then the court finds that it's okay to silence that speaker. Number one, first
question is the danger a real danger; is it a substantial danger; question number
two, is there a connection between the speech and that danger; and then question
number three, is the danger immediate. So here is the classic example that Oliver
Wendell Holmes
the chief justice and created this test gives. Perhaps you've heard of it.
Oliver Wendell Holmes famously said that to shout "fire!" in a crowded theater would create a
clear and present dange. r
Number one, the danger is substantial: people might be trampled to death in a
panic. So, number one the question is yes
shouting fire in a theater does create a real danger. Number two, is there a
connection between the speech and the danger? yes as soon as the person shouted
"fire." Obviously that's what created the panic that could lead to the public safety
hazard, and then number three: is it immediate? Yes it's immediate. Right after
someone shouts fire the public panics and creates this public safety hazard.
Therefore shouting fire in a theater would create a clear and present danger.
So that's speech test number one. Speech test number two, which is the one that
the Supreme Court is most likely to use today is called "imminent lawless action."
This one is like clear and present danger, but made smaller, and it is this:
It only asks two questions, so it's a two prong test. Number one, does this speech
advocate for a lawless action, and number two, is the action imminent or right away?
Is it immediate? So imminent lawless action works like this: If I stood up and
I said, "We should overthrow the government in a month." that would be
protected speech under imminent lawless action, but if I stood up and I said, "We
should overthrow the government right now. Come on everybody let's go." That
would fail the test.
The court would find it would be ok to silence that action because the lawless
action was imminent, so this test is also known as the "incitement test" as in to
incite a riot, or to start a riot, so that's called imminent lawless action two-prong
test only asks you questions. And then the third test is called the "O'Brien
test" and this test is used in speech plus cases, and what the Court is trying to
find out when it uses the O'Brien test is was the person silenced for their
speech or for their conduct, so the O'Brien test tries to separate those two
things. It's a four-pronged test and the prongs are actually, the questions are
asked, are actually quite complicated, so I'm not going to go into them now, but I want
you to just understand that the O'Brien test is used in speech plus cases, and it is
the Court's attempt to try to figure out was this person arrested for the
content of their speech or the conduct that they did while speaking.