Constitutional: Practice Essay Question 1

The first issue is whether Anti-Tax can be convicted under the Sedition Statute, or his

statements are protected by the First Amendment.

Under the clear and present danger test, a state cannot prohibit advocating the use of

force or of law violation unless such advocacy (i) is directed to producing or inciting imminent

lawless action, and (ii) is likely to produce or incite such action.

Here, Anti-Tax made two statements. The first statement, Anti-Tax calls on the viewers

to not to pay for the proposed tax increase, even though this statement satisfies the incitement

to make a lawless action requirement, the action is not imminent because the proposed tax law

had not been enacted, and it is uncertain if the tax law will ever be passed. The second Anti-

Tax’s statement, exhorts the viewers to make Tax pay up and show him what a taking really

means, it is likely to satisfy the clear and present danger test, because it incites the viewers to

make a lawless action, combined with the fact that Anti-Tax gave Tax’s address, it creates a

sense that the lawless actions are going to imminently occur, and the fact that an unknown

arsonist started a fire that destroyed Tax’s home, shows that Anti-Tax’s words led a viewer to

burn Tax’s house down. Therefore, Anti-Tax cannot be convicted for his statement calling to not

to pay the tax increase, because it is a protected speech, but it is likely to be convicted for his

second statement since it is an unprotected speech.

 The second issue is whether the Anti-Tax can be convicted under the “Abusive Words

Statute”.

A law is void for overbreadth if it prohibits substantial amount of protected speech.

Here, the “Abusive Words Statute” punish “directing any abusive word or term at another”, the

statute is too broad, and punishing language that is simply vulgar or abusive will reach

protected speech. Anti-Tax’s statement “You’re a dishonest imbecile” although vulgar and

abusive speech, it is protected by the First Amendment. Therefore, Anti-Tax is not likely to be

convicted under the “Abusive Words Statute”.