FREEDOM OF SPEECH, ASSEMBLY, AND THE PRESS | 99This clear and present danger test meant that the government could suppress
any speech it thought was dangerous—in this instance, preventing the government
from fi ghting the war. However, critics of the decision argue that Schenk’s actions
were not dangerous for the country.^14
Over the next several decades the Court struggled to draw the line between
dangerous speech and words that were simply unpopular. Then, in 1969, the
Court established a strong protection for free speech that still holds today. This
case involved a Ku Klux Klan leader who made a threatening speech at a cross-
burning rally that was subsequently shown on television. Twelve hooded fi gures
were shown, many with weapons. The speech said that “revengence” [sic] might
be taken if “our president, our Congress, our Supreme Court continues to sup-
press the white, Caucasian race.” He continued, “We are marching on Congress
July the Fourth, four hundred thousand strong.” The Klan leader was convicted
under an Ohio law banning “sabotage, violence, or unlawful methods of terrorism
as a means of accomplishing industrial or political reform,” but the Court unani-
mously reversed his conviction, arguing that threatening speech could not be sup-
pressed just because it sounded dangerous. Specifi cally, the direct incitement
test holds that speech is protected “except where such advocacy is directed to
inciting or producing imminent lawless action and is likely to incite or produce
such action.”^15 Under this new standard Schenk and many other previous sedition
convictions would have been overturned.
SYMBOLIC SPEECH
The use of signs, symbols, or other unspoken acts or methods
to communicate in a political manner—symbolic speech—
enjoys many of the same protections as regular speech. For
example, during the Vietnam War the Court protected the
First Amendment right of a protester to wear an American
fl ag patch sewn on the seat of his pants,^16 a high school stu-
dent’s right to wear an armband to protest the war,^17 and an
individual’s right to tape a peace symbol on the fl ag and fl y it
upside-down outside an apartment window.^18
A 1989 case provided the strongest protection for symbolic
speech yet, overturning a fl ag desecration law in Texas on the
grounds that symbolic political speech is protected by the
First Amendment.^19 In response to this unpopular decision,
Congress passed the Flag Protection Act of 1989, which the
Court also struck down as an unconstitutional infringement
on political expression.^20 Congress then attempted six times
to pass a constitutional amendment to overturn the Court
decision, but each time the measure failed in the Senate.
Spending money in political campaigns may also be pro-
tected by the First Amendment since it provides the means
for more conventional types of political speech. Here the
question is whether the government can control campaign
contributions and spending for a broader public purpose
such as controlling corruption, or whether such laws violate
the First Amendment rights of candidates or their support-
ers. You probably have heard the old saying “Money talks,”
which implies that money is speech. Given the importance
clear and present danger test
Established in Schenk v. United
States, this test allows the govern-
ment to restrict certain types of
speech deemed dangerous.
direct incitement test Estab-
lished in Brandenberg v. Ohio, this
test protects threatening speech
under the First Amendment unless
that speech aims to and is likely to
cause imminent “lawless action.”THE AMERICAN FLAG IS A POPULAR
target for protesters: it has been
spat upon, shredded, turned into
underwear, and burned, as it was
during this 2004 demonstration
at the Democratic National
Convention in Boston. Despite
multiple efforts in Congress to ban
fl ag desecration, these activities
remain constitutionally protected
symbolic speech.