Free Speech

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Kenyatta University School of Economics *

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201

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Law

Date

Nov 24, 2024

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docx

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Free Speech, Public Order Crimes, and the Bill of Rights Student’s Name Institution Date

Clear and Presents Danger The concept of clear and presents danger has been a concept of much debate in the United States. Each person has their own perspective when it comes to this concept. In order to establish a speech or an action is clear and present danger to the public, there are several key elements that must be looked at. One of these elements is the immediacy of the speech or action. The danger must be imminent, it should present an immediate threat to public safety or security, it should not be a speculation that the specific speech or action poses a threat to the public. In addition to that, the likelihood of harm is also an important element. There should be a reasonable expectation that the action or speech in question will lead to harm or public disorder, such as violence or property damage. The severity of potential harm is another element to factor in, the impact speech or action must be significant, possibly involving physical harm, substantial property damage, or a considerable disruption of public order (Gold, 2014). Another element to this concept is the proximity to unlawful acts is vital in assessing the threat. If the action or speech is closely linked to unlawful or dangerous conduct, it becomes more likely to incite or lead to such conduct, making it a clear and present danger. Courts apply a balancing test, considering the threat to public safety against the individual's right to free expression or action (Gold, 2014). If the danger significantly outweighs the right, it may be deemed a clear and present danger. Finally, authorities should also explore less restrictive alternatives to address the threat before limiting speech or action. For example, when an individual in a public gathering, starts to incite the crowd by urging them to immediately storm a government building. The person’s speech clearly encourages unlawful actions and is directed towards causing immediate violence and the destruction of property. In this scenario, the speech may be considered a "clear and present

danger" to public safety. This assessment is based on the speech's immediacy, the likelihood of harm, its proximity to unlawful acts, and the severity of potential harm. The Bill of Rights The United States Constitution's Second Amendment safeguards the individual's right to possess firearms, with its meaning evolving over time through decisions of the Supreme Court. A significant moment in this evolution occurred in the 2008 case of Heller v. District of Columbia when the Supreme Court affirmed an individual's right to have firearms for self-defense in their own residence (Streissguth, 2013). This ruling emphasized self-defense as a core element of the right protected by the Second Amendment. Subsequently, McDonald v. City of Chicago in 2010 extended the Second Amendment's protection to state and local governments, asserting that the right to keep and bear arms is a fundamental right that cannot be violated by states or municipalities (Margulis, 2010). These Supreme Court decisions clarified the scope of the Second Amendment. In acknowledging the individual's entitlement to firearm ownership, the Supreme Court also acknowledged that this right is not without limits and may be subject to reasonable regulations aimed at safeguarding public safety. The interpretation of the Second Amendment, therefore, involves a delicate balance between an individual's right to own firearms and the government's interest in maintaining public safety (Margulis, 2010). This is still a debate issue among law makers and various laws have been introduced to provide clarity in regards to this law.

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References Margulis, B. (2010). Firearms, Inc., or, a collection of essays and articles discussing McDonald v. City of Chicago, the Second Amendment, its contours in light of District of Columbia v. Heller, and its possible incorporation through the fourteenth Amendment . Streissguth, T. (2013). District of Columbia v. Heller: The right to bear arms case . Enslow Publishers. Gold S. D. (2014). Clear and present danger : schenck v. united states . Cavendish Square. Retrieved October 17 2023 from https://public.ebookcentral.proquest.com/choice/publicfullrecord.aspx?p=5733819.

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