76 PART oNE • THE AMERiCAN sYsTEM
Imminent Lawless
Action Test
The current standard
established by the
Supreme Court for
evaluating the legality of
advocacy speech. Such
speech can be forbidden
only when it is “directed
to inciting... imminent
lawless actions.”
Obscenity
Sexually offensive
material. Obscenity can
be illegal if it is found to
violate a four-part test
established by the United
States Supreme Court.restrictions on speech than Justice Holmes’s formulation. According to this rule, speech
may be curtailed if there is a possibility that such expression might lead to some “evil.”
In the Gitlow case, a member of a left-wing group was convicted of violating New
York State’s criminal anarchy statute when he published and distributed a pamphlet urging
the violent overthrow of the U.S. government. In its majority opinion, the Supreme Court
held that the First Amendment afforded protection against state incursions on freedom of
expression—the first time that the First Amendment was ever invoked against a state gov-
ernment (see the discussion of incorporation theory on pages 68 and 69). Nevertheless,
Gitlow could be punished legally because his expression would tend to bring about evils
that the state had a right to prevent.The imminent Lawless Action Test. Some claim that the United States did not
achieve true freedom of political speech until 1969. In that year, in Brandenburg v.
Ohio,^19 the Supreme Court overturned the conviction of a Ku Klux Klan leader for violat-
ing a state statute. The statute prohibited anyone from advocating “the duty, necessity,
or propriety of sabotage, violence, or unlawful methods of terrorism as a means of
accomplishing industrial or political reform.” The Court held that the guarantee of free
speech does not permit a state “to forbid or proscribe [disallow] advocacy of the use of
force or of law violation except where such advocacy is directed to inciting or producing
imminent [immediate] lawless actions and is likely to incite or produce such action.” The
imminent lawless action test enunciated by the Court is a difficult one for prosecutors
to meet. As a result, the Court’s decision significantly broadened the protection given
to advocacy speech.Unprotected Speech: Obscenity
A large number of state and federal statutes make it a crime to disseminate obscene
materials. Generally, the courts have not been willing to extend constitutional protections
of free speech to what they consider obscene materials. But what is obscenity? Justice
Potter Stewart once stated that even though he could not define obscenity, “I know it
when I see it.”definitional Problems. The Supreme Court has grappled from time to time with the
difficulty of specifying an operationally effective definition of obscenity. In 1973, in Miller
v. California,^20 Chief Justice Warren Burger created a formal list of requirements that must
be met for material to be legally obscene. Material is obscene if (1) the average person
finds that it violates contemporary community standards, (2) the work taken as a whole
appeals to a prurient interest in sex, (3) the work shows patently offensive sexual conduct,
and (4) the work lacks serious redeeming literary, artistic, political, or scientific merit. The
problem, of course, is that one person’s prurient interest is another person’s medical inter-
est or artistic pleasure. The Court went on to state that the definition of prurient interest
would be determined by the community’s standards. The Court avoided presenting a defi-
nition of obscenity, leaving this determination to local and state authorities. Consequently,
the Miller case has been applied in a widely inconsistent manner.Protecting Children. The Supreme Court has upheld state laws making it illegal to sell
materials showing sexual performance by minors. In 1990, the Court ruled that states can19. 395 U.S. 444 (1969).
20. 413 U.S. 5 (1973).
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