Brandenburg test

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The Brandenburg test was established in Brandenburg v. Ohio, 395 US 444 (1969), to determine when inflammatory speech intending to advocate illegal action can be restricted. In the case, a KKK leader gave a speech at a rally to his fellow Klansmen, and after listing a number of derogatory racial slurs, he then said that  “it's possible that there might have to be some vengeance [sic] taken.” The test determined that the government may prohibit speech advocating the use of force or crime if the speech satisfies both elements of the two-part test:  

  1. The speech is “directed to inciting or producing imminent lawless action,” AND
  2. The speech is “likely to incite or produce such action.”

Selected Applications of the Brandenburg Test 

The Supreme Court in Hess v. Indiana (1973) applied the Brandenburg test to a case in which Gregory Hess, an Indiana University protester, said, “We’ll take the fucking street later (or again)." The Supreme Court ruled that Hess’s profanity was protected under the Brandenburg test, as the speech “amounted to nothing more than advocacy of illegal action at some indefinite future time.” The Court held that “since there was no evidence, or rational inference from the import of the language, that his words were intended to produce, and likely to produce, imminent disorder, those words could not be punished by the State on the ground that they had a ‘tendency to lead to violence.’”

In NAACP v. Claiborne Hardware Co.(1982), Charles Evers threatened violence against those who refused to boycott white businesses. The Supreme Court applied the Brandenburg test and found that the speech was protected: “Strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases. An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech.”

See: advocacy of illegal actionfighting words; First Amendment; freedom of speech

[Last updated in June of 2022 by the Wex Definitions Team]