Protecting political speech: Brandenburg vs. Ohio updated

Abstract

In Brandenburg vs. Ohio, the United States Supreme Court indicated that the states may not prohibit or proscribe political speech unless such speech “is directed to inciting or producing imminent lawless action, and is likely to produce such action.”

The purpose of this paper is to discern whatever patterns emerge in the courts’ interpretation of Brandenburg since it was rendered in 1969. The author concludes that: (a) the courts have taken the “imminence” requirement fairly seriously; (b) it is less clear whether the speaker's intention is part of the Bandenburg test; (c) courts seem to treat advocacy of victimless, non‐violent crime in the same way as they do advocacy of violent illegality; and (d) rights under Brandenburg can be significantly curtailed in the military, on the campus, and in prison.