Imminent Lawless Action

This chapter illustrates how continuing advocacy of free speech principles moved the tribunal back to a more Millian approach to the freedom of expression in the mid-1960s. Personnel changes on the Supreme Court, as well as the plight of civil rights protestors and a thaw in Cold War relations, helped to bring a majority of justices closer to Black and Douglas on several First Amendment questions. Justice Brennan narrowed what constituted libel in New York Times v. Sullivan (1964). The justices also tightened the definition of unprotected obscenity. Meanwhile, the Supreme Court adopted the imminent lawless action standard for expression in Brandenburg v. Ohio (1969), embracing a view of expression that Holmes used in Abrams and that Mill supported in On Liberty. In Tinker v. Des Moines (1969), the Supreme Court recognized student expression as constitutionally protected. Although the Supreme Court deferred to the government on speech at county jails in Adderley v. Florida (1966) and on symbolic speech in United States v. O'Brien (1968), the period from 1963 to 1969 was one of the fastest shifts toward Mill in the Supreme Court's history.