San Diego Law Review

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The number of reporter military free speech cases is increasing. This article investigates the history of both civilian and military free speech cases to develop principles for understanding future military free speech cases. Civilian free speech cases, such as Schenck v. United States, Gitlow v. New York, and Brandenburg v. Ohio, involve over fifty years of First Amendment jurisprudence requiring imminency, or incitement as opposed to a clear and present danger test. Compared to civilian free speech cases, however, military free speech cases have a short history, with the latter moving towards adopting the principles of the former. Although this trend is moving in the right direction, the military courts most often employ a clear and present danger test because of its ease of application. The author concludes that only after the clear and present danger test is abandoned will military servicemen receive true justice.

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