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Simple English definitions for legal terms
Brandenburg test
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A quick definition of Brandenburg test:
The Brandenburg test is a way to determine when speech that encourages illegal actions can be restricted. It was established in a court case where a KKK leader gave a speech that included racial slurs and a suggestion of possible violence. The test says that the government can only restrict speech that is intended to incite immediate illegal action and is likely to do so. This means that people can say things that advocate for illegal actions in the future, as long as it is not likely to cause immediate harm. The test has been used in other court cases to protect free speech.
A more thorough explanation:
The Brandenburg test is a legal standard used to determine when speech that advocates illegal action can be restricted. It was established in the case of Brandenburg v. Ohio in 1969.
The test has two parts:
- The speech is “directed to inciting or producing imminent lawless action”
- The speech is “likely to incite or produce such action”
If both parts of the test are met, the government may prohibit the speech.
In the case of Hess v. Indiana, a protester said, “We’ll take the fucking street later (or again)." The Supreme Court ruled that this speech was protected under the Brandenburg test because it was not intended to produce imminent disorder.
In NAACP v. Claiborne Hardware Co., a man threatened violence against those who refused to boycott white businesses. The Supreme Court applied the Brandenburg test and found that the speech was protected because it did not incite lawless action.
These examples illustrate how the Brandenburg test is used to determine when speech that advocates illegal action can be restricted. If the speech does not meet both parts of the test, it is protected under the First Amendment's freedom of speech.