Brandenburg and the Triumph of Holmes' and Brandeis' Theories

Ohio’s Criminal Syndicalism law prohibited advocacy of using unlawful means to accomplish industrial or political reform.

What did the defendant do to get himself in trouble in this case?

Basically he organized a Ku Klux Klan rally and said that “if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, its possible that there might have to be some revengeance taken.” (p. 36).

Notice that the Ohio statute is very similar to the California statute upheld by the Court in Whitney. But also notice that the Court makes clear that Whitney has been discredited and proceeds to adopt the substance of the clear and present danger test as advocated by Justice Brandeis and Holmes in their concurring opinion in Whitney.

What is the Brandenburg test? (p. 36)

The “constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation” S T O P. That is the general rule! The state may not prohibit advocacy of the use of force or unlawful means. The general rule is freedom of speech.

What is the exception?

“[E]xcept where such advocacy is directed [i.e. intended] to inciting or producing imminent lawless action and is likely to incite or produce such action.”

To be actionable, radical speech must 1) be intended to incite imminent lawless action and 2) it must be likely that such speech will incite or produce such action. Basically, the model is falsely shouting fire at a crowded Hannah Montana concert. Probable, serious, and immediate.

When there is no immediate threat of serious harm, the remedy for bad speech is good counterspeech. The Court does not use the words “clear and present danger,” but this test is substantively quite similar to the one urged by Brandeis in Whitney.

Here is how one commentator describes the Brandenburg test –

“With its emphasis on incitement, imminent, lawless action, and the objective words of the speaker, it should provide a strong measure of first amendment protection.” (Nowak at 865).

What do you think? Can you live with Brandenburg? How would the old draft obstruction cases come out under Brandenburg?

What about our Dean’s Office hypo? Am I protected by the First Amendment when I address an unruly mob of law students, work them to a frenzy by pointing out the unfairness of the library fee, and urge them to “burn down the Dean's office”?

What about the clever inciter, who avoids using express words of incitement?

[Nowak at p. 876: “Should the Court confront a situation where a speaker advocates violence through the use of a speech which does not literally advocate action, such as Marc Antony’s funeral oration for Caesar, the majority might be urged to abandon the protections of the Brandenburg test and instead look for proximity to violence rather than the literal words of incitement.”]

Notice that the Brandenburg test is simply a specialized form of strict scrutiny – restricting speech must be absolutely necessary to prevent a great and imminent evil.