Delaware
How Brandenburg v. Ohio applies in Delaware: state-specific rules, key cases, and bar exam notes for Constitutional Law.
Delaware law aligns with the federal standard set forth in Brandenburg v. Ohio, emphasizing the protection of free speech unless it incites imminent lawless action. The state courts recognize the importance of balancing speech interests with public order.
In Delaware, speech is protected under Article I, Section 5 of the Delaware Constitution, barring regulations that penalize speech except when it is directed to inciting or producing imminent lawless action and is likely to produce such action.
The Delaware Supreme Court reaffirmed that inflammatory speech not directed to imminent lawless action is protected under state constitutional provisions.
The court found that the defendant's speech, although provocative, did not meet the threshold of inciting imminent lawless action and was thus protected.
This case involved the striking down of an ordinance that restricted speech on public property, emphasizing the necessity of the Brandenburg standard.
Delaware's approach closely mirrors the federal standard set by Brandenburg v. Ohio, emphasizing the necessity for immediacy in the incitement to action. However, Delaware’s state constitution provides a broader scope of interpretation in protecting speech, thus reflecting a state-specific nuance.
Candidates should be aware of how Delaware courts apply the Brandenburg incitement standard in free speech cases, particularly as it may differ in specific nuances from federal interpretations.