Report No. 267

(iii) Test to qualify speech as hate speech:

4.33 In order to qualify the speech as hate speech, the expression must qualify the clear and present danger test expounded in Schenck v. United States83. The clear and present danger test was reformulated in Brandenburg v. Ohio84 to imminent threat of lawless action test. The Court remarked that 'freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action'.