The court did not even get to this question, because it
struck down the Ohio statute. In so doing, the Court articulated a
test which a statute proscribing speech must meet. Speech advocating
the use of force or crime could only be proscribed where two
conditions were satisfied: (1) the advocacy is “directed to inciting
or producing imminent lawless action,” AND (2) the advocacy is also
“likely to incite or produce such action.” The Ohio act punished all
advocacy of the “duty, necessity or propriety of crime [or]
violence…as a means of accomplishing industrial or political
reform….” This language was so broad that it forbade advocacy of the
abstract doctrine of violent political change, as well as incitement
to imminent unlawful action. Thus, it was unconstitutional, even
though some applications of it might have been constitutional.
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