Would Brandenburg v. Ohio Be Decided the Same Way Today?

The Supreme Court held per curiam that the government cannot punish inflammatory speech unless it is 'directed to inciting or producing imminent lawless action and is likely to incite or produce such action.' The decision overruled Whitney v. California (1927) and established a highly speech-protective test that replaced the 'clear and present danger' standard with a more rigorous requirement of both intent and likelihood of imminent harm. The case arose from the prosecution of a Ku Klux Klan leader under an Ohio criminal syndicalism statute.

Brandenburg established the modern standard for incitement and is widely regarded as one of the most speech-protective tests in the world. The decision reflects the American constitutional commitment to tolerating even dangerous and hateful speech unless it poses an immediate threat of lawless action. For more than five decades, Brandenburg has provided robust protection for political speech, protest activity, and even extreme rhetoric that falls short of direct incitement.

The test has been applied to a wide range of modern contexts, including online speech, social media posts, political rallies, and protest movements. The January 6, 2021 attack on the U.S. Capitol raised significant questions about the Brandenburg standard's application to political speech that arguably contributes to political violence without meeting the strict requirements of imminent incitement. The subsequent impeachment proceedings and criminal prosecutions required grappling with the line between protected political speech and culpable incitement.

The rise of online radicalization, social media-facilitated extremism, and stochastic terrorism has prompted debate about whether Brandenburg's imminence requirement is adequate for addressing modern threats. Critics argue that the test was designed for a world of in-person speeches to physical audiences and does not adequately address the dynamics of online incitement, where speech can reach millions simultaneously and inspire violence without satisfying the traditional imminence requirement.

Brandenburg would very likely be decided the same way today. The decision's speech-protective standard has been consistently reaffirmed and represents a deep commitment of American free speech jurisprudence. The current Court, across its ideological spectrum, has demonstrated a strong commitment to First Amendment protection, with recent decisions continuing to expand rather than contract the scope of protected speech.

The imminent lawless action test provides a workable and principled standard for distinguishing between protected advocacy and culpable incitement. The requirement of both intent and likelihood of imminent harm ensures that the government cannot use incitement charges to suppress unpopular political speech, a concern that animated the Court's development of First Amendment doctrine throughout the twentieth century. The historical abuses of sedition laws, from the Alien and Sedition Acts to the prosecution of labor organizers and civil rights activists, provide a powerful cautionary tale against weakening Brandenburg's protections.

The most significant challenge to Brandenburg comes from the online speech context. The temporal and spatial dimensions of 'imminence' are less clear when speech is disseminated instantaneously to a global audience and can inspire action by individuals the speaker has never met. However, the Court has shown no inclination to modify the Brandenburg standard for online speech, and the practical difficulties of crafting a workable alternative counsel caution.

The international comparison is illuminating. Most other democracies have adopted significantly more restrictive approaches to hate speech and incitement, permitting the criminalization of speech that would be protected under Brandenburg. The American approach is an outlier, but it is deeply embedded in the First Amendment tradition and enjoys broad support among both liberal and conservative jurists.

The scholarly debate about Brandenburg has intensified in light of modern communication technologies and the rise of extremism. Alexander Tsesis has argued that Brandenburg's imminence requirement is inadequate for addressing the harms of hate speech that contributes to a climate of discrimination and violence over time, even without meeting the traditional requirements of direct incitement. Tsesis contends that the test should be modified to account for the cumulative effects of dehumanizing speech on targeted communities.

Defenders of the strict Brandenburg standard, including Eugene Volokh and Robert Post, argue that any weakening of the incitement test would inevitably be used to suppress minority viewpoints and political dissent. They point to the historical pattern of speech restrictions being disproportionately applied to marginalized groups and argue that the costs of tolerating some dangerous speech are outweighed by the risks of government censorship. The debate has taken on new urgency in the context of social media content moderation, where private companies apply their own speech standards that often diverge significantly from the Brandenburg framework.

• Counterman v. Colorado (2023)
• Snyder v. Phelps (2011)
• Matal v. Tam (2017)
• Hess v. Indiana (1973)
• Virginia v. Black (2003)