The incitement test first urged by Learned Hand did not become part of the Supreme Court's First Amendment jurisprudence until 1969, in the per curium decision of Brandenburg v Ohio.  In reversing the conviction of a Ku Klux Klan leader who gave a speech warning "that there might have to be some revengeance taken" for "continued suppression of the white, Caucasian race," the Court held that the First Amendment allows punishment only of subversive advocacy calculated to produce "imminent lawless action" and which is likely to produce such action.  Thus, Brandenburg brings together the incitement test urged by Hand and the "clear and present danger" test urged by Justices Holmes and Brandeis in their famous dissents in the 20s.  The Court applied its Brandenburg analysis four years later in Hess v Indiana to reverse the conviction of a demonstrator who was overheard by a police officer to say, "We'll take the fucking street later."  The Court concluded that Hess's statement, taken in context, was not aimed at producing imminent lawless conduct but rather, at the most, lawless conduct at some indefinite future time. 

The Court also failed to find the Brandenburg test satisfied in NAACP v Clairborne Hardware (1982).  The Court found First Amendment protection for the NAACP's practice of writing down names of blacks who violated a boycott of certain white businesses, and then reading them aloud at NAACP meetings.  The Court also found constitutional protection for the statement, "If we catch any of you going in any of them racist stores, we're going to break your damn neck."  The Court said the statement fell short of a direct threat or ratification of violence.

Rice v Paladin Enterprises considered the First Amendment arguments of a publisher of a how-to guide for hit men.  Paladin's book, Hit Man: A Technical Manual for Independent Contractors, was concededly used by a reader as a guide for committing the brutal contract killing of three persons.  A panel of the Fourth Circuit Court of Appeals ruled unanimously in Rice that Brandenburg did not bar a jury from imposing civil liability on Paladin for aiding and abetting murder. The Fourth Circuit read Brandenburg not to require imminence for the type of speech involved in Rice.  In 1998, the Supreme Court denied cert in Rice.

Controversial Websites Present Thorny First Amendment Issues Snapshot of http://international.thabaat.net/, a pro-Al qaeda website, as it appeared in June 2009 1.  A website called "The Nuremberg Files," a virulently anti-abortion website, featured such images as simulated blood dropping from fetuses.  It also provided the names and addresses of doctors in the United States who performed abortions.  Red lines crossed the names of a few doctors who had been killed by militant anti-abortionists and gray lined crossed the names of wounded doctors.  It is a federal crime to intimidate persons who provide reproductive health services.  Can the website operator be prosecuted under federal law?  Sued civilly by a doctor wounded by a website visitor? (In 2002, the 9th Circuit, voting 6 to 5, held the speech on the Nuremberg Files was not protected. (Planned Parenthood v American Coalition of Life Activists). [For link to a mirrored "Nuremberg Files" page, on a server based in the Netherlands, click on:  NF.  At the top of the page, read the note the motivation given by Karen Spaink for mirroring the page--it's not the reason you might think.  What do you think of her arguments?] 2.  The "Society for Advancement of Man-Boy Love" attracted attention after two men who kidnapped and sexually molested an 11-year-old boy were found to have kept a diary that indicated they turned to the "Man-Boy Love" website for psychological comfort.  The site posted pseudo-studies that purported to show that unforced sex between an adult and child can be a "positive" experience: "Man/boy love, far from dangerous to minors, can be quite healthy."  The site suggested that the "loving pedophile can provide companionship and security for a child and should be viewed by parents as a partner in the boy's upbringing, someone to be welcomed into the home."  Is this protected speech, given that the activity being described is illegal in all fifty states?  In Los Angeles, a pedophile was found to have turned to a website that listed good places to "observe children."  Protected speech?