Case Study 1 — Brandenburg v. Ohio (1969) and the Modern Speech Doctrine

On a Cincinnati farm in the summer of 1964, a small Ku Klux Klan rally was filmed by a local television reporter. Twelve hooded men stood around a burning cross. One of them, identified later as Clarence Brandenburg, gave a short speech. He referred to "n——s" and "Jews" using slurs. He said that "if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance taken." He announced a planned march on Washington for the Fourth of July.

Brandenburg was convicted under Ohio's Criminal Syndicalism Act, a 1919 statute that criminalized advocating "the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform." He was fined $1,000 and sentenced to one to ten years in prison. The Ohio courts affirmed.

The Supreme Court, in 1969, unanimously reversed. The opinion was per curiam — issued for the Court without a single named author — running just six pages. It announced what is now the foundational test of American free-speech doctrine.

The doctrine before Brandenburg

To understand what the Court did, you have to know what it replaced. Schenck v. United States (1919) sustained the conviction of a Socialist Party leader for distributing draft-resistance leaflets, with Justice Holmes articulating the "clear and present danger" test. In Holmes's later dissents the test had bite, but the operative version through the 1950s was substantially more deferential to government. Whitney v. California (1927) sustained a Communist Labor Party criminal-syndicalism conviction. Dennis v. United States (1951) sustained Communist Party convictions for advocating the overthrow of the government, applying a balancing test that asked whether "the gravity of the 'evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger."

In practice, "clear and present danger" allowed government to punish advocacy of illegal action even when no action was imminent and unlikely to result. The doctrinal protection was thinner than the rhetoric.

A series of late-1950s and 1960s cases narrowed sedition prosecutions. Yates v. United States (1957) distinguished advocacy of abstract doctrine (protected) from advocacy of action. NAACP v. Button (1963) and NAACP v. Alabama (1958) protected civil-rights advocacy. New York Times v. Sullivan (1964) granted broad protection to political speech against defamation suits by public officials. Brandenburg announced the stronger rule the Court had been building toward.

The Brandenburg test

The Court reversed Brandenburg's conviction and struck down the Ohio statute. The opinion stated:

"The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

That sentence contains two prongs, and both must be satisfied for speech to be unprotected:

1. The speech must be directed to inciting or producing imminent lawless action. Not abstract advocacy. Not "someday we should rise up." Specific incitement of specific imminent action.
2. The speech must be likely to produce such action. The objective probability that the words will, in fact, produce imminent lawless action.

The test is much stricter than "clear and present danger." Under Brandenburg, advocacy of violence at some indefinite future time — the standard rhetoric of revolutionary, religious, and political speech across human history — is constitutionally protected. The government can punish the action, but not the speech. The line between speech and conduct is the line of constitutional protection.

Justice Black concurred, restating his view that the First Amendment provides absolute protection. Justice Douglas concurred, emphasizing that the "clear and present danger" test, even as Holmes had used it, was historically associated with abuses (Holmes had used it in Schenck to sustain the conviction of an antiwar leafletter) and should be repudiated.

Why the test matters

The Brandenburg test is the most counter-intuitive piece of First Amendment doctrine for most people. A speaker who calls for political violence — eventually — is not subject to criminal prosecution, even if the speech is repugnant, even if it influences listeners, even if it makes a particular outbreak of violence statistically more likely. The speech is protected because the alternative — letting the government punish speech that advocates violence at an indefinite future time — would license the government to punish almost any radical political position. American history contains many radical political positions that were once unpopular and, in retrospect, valuable: abolition, women's suffrage, labor organizing, civil-rights protest, anti-war advocacy. A government empowered to punish speech that "tended" to produce violence at some uncertain future point would have prosecuted all of them.

The discipline of Brandenburg is that the protection runs to all speakers, including the ones whose views you find most repugnant. It protects the Klan rally in Cincinnati. It protects the Black Panther speech that calls for armed self-defense. It protects the radical environmental speech that says industrial civilization should be brought down. It protects the Christian-nationalist speech that says American government should be subordinated to a particular faith. It protects all of them, because the test does not look at the content of the message — it looks at whether the speech is directed to and likely to produce imminent lawless action.

Application: contemporary contested speech

The January 6 question

On January 6, 2021, then-President Donald Trump gave a speech at a rally near the White House before a crowd that subsequently moved to the U.S. Capitol, where some members violently breached the building during congressional certification of the 2020 election results. Trump was impeached for incitement of insurrection by the House and acquitted by the Senate. He was not federally prosecuted under any incitement statute, and his subsequent federal indictments rested on different theories (conspiracy to defraud the United States, conspiracy to obstruct an official proceeding) that did not turn on First Amendment incitement doctrine.

Why? Brandenburg is the answer.

The speech included statements like "we fight, we fight like hell" and instructions to march to the Capitol. It also included the words "I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard." Under Brandenburg, the government would have had to prove (a) that the speech was directed to inciting imminent lawless action — that the speaker intended to produce such action — and (b) that the speech was likely to produce such action.

The legal commentary on this question split predictably along political lines. Defenders of impeachment argued that the totality of Trump's conduct in the weeks before January 6, combined with the speech itself, was sufficient to satisfy Brandenburg. Critics argued that the explicit call for "peaceful" assembly, combined with the difficulty of proving intent at the Brandenburg threshold, would make any criminal incitement prosecution constitutionally unsustainable.

The point is not which side of that debate is correct. The point is that Brandenburg is the test, and the test is high. The same standard that protected anti-war protesters from sedition prosecutions in the 1960s, that protected Klan speakers in 1969, and that protected radical Black-power speakers in the 1970s also constrained any prosecution of January 6 speech under an incitement theory. The doctrinal protection runs across the political map. That is the design.

Campus speakers and the heckler's veto

Universities have struggled with controversial speakers — invitations to public figures whose views many students find repugnant, sometimes met with disruption, occasionally with violence. The doctrinal questions are different at public universities (which are state actors bound by the First Amendment) and private universities (which are not, but which often commit themselves to similar protections through institutional policy).

The civil-liberties principle, derived from Brandenburg and a long line of cases applying it, is that speech is not unprotected because some listeners might be moved to violence. The "heckler's veto" — the rule that the most aggressive opponent of a speaker can effectively cancel the speech by threatening violence — is constitutionally rejected. The government's response to threatened disruption must be to maintain order for the speaker, not to silence the speaker because of the threat. Forsyth County v. The Nationalist Movement (1992) reinforced this principle, striking down a permit-fee scheme that varied with anticipated security costs.

The principle binds the political left and the political right symmetrically. Universities that fail to protect a left-wing speaker from disruptive right-wing protest, and universities that fail to protect a right-wing speaker from disruptive left-wing protest, have failed the same constitutional standard. Civil-libertarian charity here goes opposite ways for opposite groups, and the test of seriousness is whether your principle holds across the flip.

Social-media moderation

The application of Brandenburg to private social-media platforms is doctrinally indirect — Brandenburg binds the government, not Facebook, Twitter (now X), TikTok, or YouTube. Private platforms are themselves First Amendment speakers (the position the Court strongly suggested in NetChoice v. Paxton/Moody in 2024) and have wide latitude to moderate content on their services.

But Brandenburg is in the doctrinal background of contemporary social-media debates in two ways. First, when state legislatures (Texas, Florida) sought to require platforms to host speech they would otherwise remove, the platforms relied on First Amendment editorial-discretion principles whose roots run through Brandenburg and the broader doctrine. Second, when critics argue platforms should more aggressively moderate "incitement," they often invoke a broader notion of incitement than Brandenburg would permit a government to act on. The relevant private-platform standard is not constitutionally fixed; the platforms decide. But the cultural baseline for what counts as "harmful incitement" is shaped by the constitutional standard, and that standard is high.

What Brandenburg asks of you

The Brandenburg test is harder to live with than it is to articulate. It protects speech you find repugnant. It allows speakers to come close to the line of incitement without crossing it, and it sometimes allows them to give the impression of crossing it without actually doing so under the legal test. It frustrates almost everyone, eventually, because almost everyone, eventually, encounters speech they wish the government could punish.

The civil-libertarian discipline is to keep the test even-handed. If you defend Brandenburg when it protects the Klan, you must defend it when it protects whatever speaker you cannot stand next. If you criticize Brandenburg when it protects a January 6 speech, you must criticize it consistently when it protects civil-rights organizers in 1965 and labor agitators in 1935. The test was made to be hard. It was made not to track the political preferences of any particular era. That is the protection it offers.

The next case study turns to another doctrinal change that has cut against contemporary progressive policy preferences — the Second Amendment after Bruen. The pairing is deliberate. The Brandenburg and Bruen doctrines both reflect a Court committed to robust individual-rights protection in domains where contemporary majorities (in some cases left-leaning, in others right-leaning) have wanted more regulatory latitude. A serious civil-libertarian recognizes that pattern across both directions and assesses each doctrine on its merits, not on whose ox it gores.