Legal Definitions - Brandenburg test

The Brandenburg test is a legal standard used in the United States to determine when speech that advocates for illegal actions can be restricted by the government without violating the First Amendment's protection of free speech. Established in the 1969 Supreme Court case Brandenburg v. Ohio, this test ensures that only speech posing a genuine and immediate threat to public safety can be prohibited.

For speech to be considered unprotected and therefore subject to government restriction, it must satisfy both of the following conditions:

• The speech must be "directed to inciting or producing imminent lawless action." This means the speaker intends for their words to cause immediate illegal acts.
• The speech must be "likely to incite or produce such action." This means there is a high probability that the speech will actually lead to immediate illegal acts.

If speech fails to meet either of these two conditions, it is considered protected under the First Amendment, even if it expresses unpopular or offensive views, or advocates for future illegal actions.

Here are some examples illustrating how the Brandenburg test applies:

• Example 1: Protected Speech (Advocacy for Future Action)

  Imagine a local activist group holds a public meeting to protest a new city tax. During the meeting, a speaker passionately declares, "This tax is an outrage! If the city council doesn't repeal it, we should all gather next month and block the entrance to City Hall until they listen to us!"

  How it illustrates the test: This speech would likely be protected. While it advocates for an illegal action (blocking a public building), it proposes this action for "next month," meaning it is not calling for imminent lawless action. There is no immediate threat of illegal activity occurring right then and there. Therefore, it fails the "imminent" prong of the Brandenburg test.

• Example 2: Unprotected Speech (Inciting Imminent Lawless Action)

  Consider a highly charged protest outside a government building where a controversial decision has just been announced. The crowd is already agitated and pushing against police barricades. A speaker, seeing the crowd's mood, grabs a megaphone and shouts, "They've made their decision, now let's make ours! The doors are right there! Break through and show them we won't stand for it, now!" while pointing directly at the building entrance.

  How it illustrates the test: This speech would likely be unprotected. It is clearly directed to inciting imminent lawless action (breaking into the building immediately) and, given the agitated crowd and immediate context, it is also likely to incite or produce such action. Both prongs of the Brandenburg test are met, making the speech subject to restriction.

• Example 3: Protected Speech (No Intent to Incite)

  A podcaster hosts a satirical show discussing current events. In one episode, they jokingly suggest, "Wouldn't it be hilarious if, instead of paying taxes, everyone just mailed their tax forms back with a drawing of a potato? Imagine the chaos!"

  How it illustrates the test: This speech would be protected. Although it references an illegal act (tax evasion), it is clearly presented as satire and humor. The speaker does not intend to incite listeners to actually commit tax fraud, nor is it likely that listeners would interpret it as a serious call to action. It fails the "directed to inciting" prong because there's no genuine intent to cause lawless action.