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[231] For case law regarding Illinois’ private right of action, see In re CLDC Management Corp., 18 B.R. 797, 799-800 (Bankr. D. Ill. 1982) (implied private right of action allowed); Martin v. Heinold Commodities, 163 Ill. 2d 33, 67 (1994) (punitive damages allowed). For case law regarding Arizona’s private right of action, see Holeman v. Neils, 803 F. Supp. 237 (D. Ariz. 1992) (implied private right of action allowed); Dunlap v. Jimmy GMC of Tucson, Inc., 666 P.2d 83 (Ariz. Ct. App. 1983) (punitive damages allowed).

[232] Strigliabotti v. Franklin Res., Inc., No. C 04-00883 SI, 2005U.S. Dist. LEXIS 9625 (N.D.Cal. March 7, 2005).

[233] Brown v. Bd. of Educ., 345U.S. 972 (1953).

[234] 367 U.S. at 207-210. The intervening statute purportedly overruling the Smith Act membership clause, the Internal Security Act of 1950, 64 Stat. 987 (codified at 50 U.S.C. § 781), was repealed by Act of Dec. 17, 1993, Pub. L. No. 103-199, Title VIII, § 803(1), 107 Stat. 2329.

[235] The petitioner also raised “as applied” claims but these boiled down to an evidentiary analysis.

[236] 367U.S. at 225.

[237] 367U.S. at 297.

[238] Id. In Brandenburg v. Ohio, 395 U.S. 444 (1969), in a per curiam decision, the Court held in striking down a state law criminalizing speech advocating violence that such speech is constitutionally protected unless it is intended and likely to cause imminent illegal conduct. The Brandenburg Court understood its decision as concordant with the Smith Act cases cited. The question of “imminence” will no doubt plague future cases and remain a fact-based inquiry. Imminence will likely involve not simply the timing of the threat of violence, but also its seriousness and its likelihood.

[239] Olivier Guitta, The Cartoon Jihad: The Muslim Brotherhood’s project for dominating the West, Weekly Standard 22, Feb. 20, 2006, available at (last visited Jan. 31, 2008).

[240] 212 U.S. at 498. The Elkins Act made it an offense to “give or receive a rebate whereby goods are transported in interstate commerce at less than the published rate.” Preet Bharara, Corporations Cry Uncle and Their Employees Cry Foul: Rethinking Prosecutorial Pressure on Corporate Defendants, 44 Am. Crim. L. Rev. 53, 61 n.42 (2007) (quoting New York Central, 212U.S. at 498).

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