In looking at the question of what speech is protected and what is not, courts have always looked to context. For example, every Supreme Court decision on this subject recognizes war as an exception to the First Amendment, even though the Constitution says no such thing. The classic example cited by the older cases is recognition of the government’s unfettered right, in time of war, to ban the publication of information revealing the sailing dates of troop transports. Ten years after Brandenburg, a district judge in the United States v. Progressive case enjoined the publication of classified nuclear bomb formulas. The court found that times had changed, war was no longer limited to foot soldiers who travel to battle sites on troop transports, and even though it was not clear that a reader would imminently “build a hydrogen bomb in the basement,” the scope of the danger overwhelmed the imminence factor.
The balancing act was succinctly explained by Robert W. Warren, the district court chief judge who, when referring to Patrick Henry’s famous liberty-or-death choice, wrote, “in the short run, one cannot enjoy freedom of speech, freedom to worship, freedom of the press unless one first enjoys the freedom to live.”
The balancing test must look at what is real. The measurement of imminence changes when we are talking about detonating a nuclear bomb in New York City as opposed to an unlicensed rally blocking the Brooklyn Bridge.