Note: This is an educational course, not legal advice.
Brandenburg ended the line that began with clear and present danger. Its test has three parts, and all three must be met before advocacy of lawbreaking can be punished.
| Element | Words in Brandenburg | What it rules out |
|---|---|---|
| 1. Intent | "directed to inciting or producing" | speech that is careless or reckless about violence but not aimed at it |
| 2. Imminence | "imminent lawless action" | advocacy of lawbreaking at some later time |
| 3. Likelihood | "likely to incite or produce such action" | calls to violence that no one is likely to act on |
Why it works
The test protects a great deal of hateful and alarming speech, on purpose. Its defenders say that letting officials punish speech for its tendency to cause harm someday gave them power to silence unpopular causes, from antiwar pamphlets to civil rights groups. In Hess v. Indiana (1973) a protester's remark about taking the street "later" was not punishable because it was not directed to imminent action; in NAACP v. Claiborne Hardware (1982) heated speeches supporting a boycott were protected. Brandenburg does not protect everything: speech that meets all three elements is unprotected incitement, and other categories such as true threats have their own tests.
Key idea
Brandenburg v. Ohio (1969): government may not punish advocacy of force or lawbreaking unless it is directed to inciting imminent lawless action and is likely to produce it. It overruled Whitney.
Worked example: A speech at a rally
At a rally, a speaker says that someday the movement will have to fight its enemies in the streets. Nothing happens. Can the speaker be convicted of incitement?
- Intent: unclear at best.
- Imminence: "someday" is not imminent.
- Likelihood: no sign anyone was about to act.
- All three elements are needed; imminence alone fails.
Answer: No; the speech is protected under Brandenburg.
Worked example: A crowd outside a building
A speaker points at a building across the street and tells an angry crowd to break in and burn it right now, and people start toward it. Is that protected?
- Intent: the words are directed at producing lawless action.
- Imminence: "right now," at a building in view.
- Likelihood: the crowd begins to act.
Answer: Not protected: it meets all three elements of incitement.
Common mistake
Leaving out one of the elements. All three are needed: intent ("directed to"), imminence and likelihood. A quick check: if any one is missing, Brandenburg protects the speech.