Reply #20: The Clear and Present Danger test severely limits its applicability. [View All]

[Xithras]

The USSC has ruled that advocating for the overthrow of the U.S. government, and even the deaths of its members, was a protected First Amendment activity. The only exception is the narrowly defined "clear and present danger test". In essence, in order to prosecute you for violating that statute, the prosecutor must PROVE that you had the capability and intent to actually carry out the activity yourself, or a reasonable belief that your statements would lead someone else to commit the crime right away. There is also an exception for direct personal threats.

Saying "I want Senator X to die" in your own home, or even among the general public, somewhere in Nebraska, is legal because your statement by itself carries no direct threat, and no reasonable chance of being carried out. It might get you questioned, but that's about it.

Saying "I want Senator X to die" while standing on the steps of the Capitol building brandishing an SKS would be prosecutable, because you are now a present danger to that person (you'd probably be shot by the Capitol police anyway, so that example is a bit moot).

Saying "I want to kill Senator X" is a crime anywhere in the U.S., because that's a direct threat.

Saying "You should kill Senator X" to your drunk buddy over a campfire in the Rockies is legal because, again, there is no clear and present danger associated with the statement.

Saying "You should kill Senator X" to your mentally ill buddy who is already angry at the government is a crime, because there is an actual danger that it might be carried out.

Prosecuting people under that law is tricky. It's all about intent, and it is NOT illegal to simply advocate for the overthrow of the U.S. government, or to state that you wish for the death of its members. There has to be an actual threat involved.