Brandenburg test

The Brandenburg test was established in Brandenburg v. Ohio, 395 US 444 (1969), to define when inflammatory speech intending to advocate illegal action can be restricted under the First Amendment. The case involved a Ku Klux Klan leader who, during a rally, used racist language and suggested that “some vengeance” might need to be taken. The Supreme Court reversed his conviction under Ohio’s criminal syndicalism statute, finding the law unconstitutional.

The Court created a two-part test to determine when advocacy of illegal action loses constitutional protection. Speech may be prohibited only if:

  • The speech is directed to inciting or producing imminent lawless action, and
  • The speech is likely to incite or produce such action.

This test replaced earlier “bad tendency” and “clear and present danger” standards, marking a decisive shift toward stronger protections for political expression.

Selected Applications of the Brandenburg Test

  • In Hess v. Indiana, 414 U.S. 105 (1973), the Supreme Court held that an antiwar protester’s statement – “We’ll take the fucking street later” – was protected speech because it merely advocated illegal action at some indefinite future time, and not imminent lawless action. The Court found no evidence that Hess’s words were intended or likely to produce immediate disorder or violence.

  • In NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), the civil rights organizer Charles Evers made emotionally charged statements encouraging a boycott and threatening social consequences for nonparticipants. The Court ruled that the speech was protected, emphasizing that strong and impassioned rhetoric is constitutionally safeguarded unless it incites imminent lawless action.

The Brandenburg test remains the controlling standard for evaluating the limits of speech advocating for violence or unlawful conduct. It ensures that the government cannot punish speech based solely on its content or perceived offensiveness unless it poses an immediate, concrete threat of illegal activity.

See: fighting words; First Amendment

[Last reviewed in October of 2025 by the Wex Definitions Team] 

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