The Constitutional Rubicon of an Assange Prosecution

jim bell jdb10987 at
Tue May 9 15:00:37 PDT 2017

 From: Razer <g2s at>

>With links:

> Elizabeth Goitein co-directs the Brennan Center for Justice’s Liberty
> and National Security Program. Before joining the Brennan Center, Ms.
> Goitein served as counsel to Sen. Russ Feingold and as a trial
> attorney in the Federal Programs Branch of the Civil Division of the
> Department of Justice. 

>From that article:
    "And if they knowingly print information that presents a “clear and present danger” to public safety—the equivalent of incitement, or of yelling “fire” in a crowded theater—they could presumably be prosecuted (although no such prosecution has ever taken place)."    [end of quote]
No, the "clear and present danger" test   , to the extent it had any validity at all,  was overturned in 1969 by Brandenburg v. Ohio.   
"The U.S. Supreme Court reversed Brandenburg's conviction, holding that government cannot constitutionally punish abstract advocacy of force or law violation. The majority opinion was per curiam (issued from the Court as an institution rather than as authored and signed by an individual justice). The earlier draft had originally been prepared by Justice Abe Fortas before he was forced to resign in the midst of an ethics scandal, and would have included a modified version of the clear and present danger test. In finalizing the draft, Justice Brennan eliminated all references to it, substituting instead the "imminent lawless action" language.[10] Justices Black and Douglas concurred separately."

As stated in the
   "Antiwar protests during World War I gave rise to several important free speech cases related to sedition and inciting violence. In the 1919 case Schenck v. United States, the Supreme Court held that an antiwar activist did not have a First Amendment right to advocate draft resistance.[3][4] In his majority opinion, Justice Holmes introduced the clear and present danger test, which would become an important concept in First Amendment law; but the Schenck decision did not formally adopt the test.[3] Holmes later wrote that he intended the clear and present danger test to refine, not replace, the bad tendency test.[5][6] Although sometimes mentioned in subsequent rulings, the clear and present danger test was never endorsed by the Supreme Court as a test to be used by lower courts when evaluating the constitutionality of legislation that regulated speech.
              Jim Bell
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