The incitement standard announced in Brandenburg v. Ohio is one of the most familiar tests in the Supreme Court's jurisprudence. It prohibits government officials from punishing advocacy of illegal activity unless it is directed and likely to imminently incite such activity. Brandenburg's standard has become a pillar of free speech law, allowing government officials to protect public safety by punishing only speech intended and likely to create an imminent danger of harm, while protecting even the most abhorrent of speakers from suppression of their speech simply because government officials fear or dislike it. Terrorist advocacy, however, is putting pressure on the Brandenburg standard. As terrorist organizations increasingly urge non-members to engage in violent acts or otherwise glorify violence, spread propaganda, and recruit individuals to their cause, scholars and policy makers express concern about the dangerousness of such advocacy. Although such terrorist advocacy does not meet Brandenburg's strict requirements, some scholars have suggested altering or working around Brandenburg's incitement standard to counter the dangerous influence of terrorist advocacy, especially advocacy occurring through online sources. Thus, they have suggested that (1) Brandenburg's imminence requirement does not, or should not, apply to terrorist advocacy, (2) the United States should enact laws prohibiting people from accessing terrorist indoctrination websites, or (3) the government can use laws punishing material support of terrorism to punish terrorist advocacy.
Although scholars pushing this agenda rightfully want to avoid the harm resulting from terrorists' actions, their willingness to alter or work around Brandenburg in the context of terrorist advocacy ignores the important role that imminence plays in preventing government officials from using national security crises to suppress dissenting viewpoints. Indeed, the historical context leading up to Brandenburg reveals that the decision is largely a response to the malleable "clear and present danger" test that preceded it. That earlier test both failed to protect political dissent and allowed government officials to target disfavored groups, such as labor organizations, socialists and communists, that officials labeled as "dangerous." Removing the imminence requirement raises the very real risk that such abuse could occur again, especially since the justification for the change - i.e., the unique and catastrophic danger of terrorism - is so similar to arguments made in past crises.
Christina E. Wells,
Assumptions about Terrorism and the Brandenburg Incitement Test, 85 Brooklyn Law Review 111
Available at: https://scholarship.law.missouri.edu/facpubs/965