Brandenburg Test

The First Amendment would not permit a law that makes it a crime to be a member of an identifiable “terrorist” organization because their actions are likely to pass the Brandenburg test. The Brandenburg test, established in Brandenburg v. Ohio, requires that speech be “directed to and producing imminent lawless action and is likely to incite and produce such action” before it can be Constitutionally abridged (Brandenburg, 981). The Brandenburg test established the modern interpretation of limitations on First Amendment principals. Previously, the clear and present danger test, as established in Schenck v. United States, was the prevailing test to determine if speech could be considered to advocate illegal conduct and thus, be excluded from First Amendment protections. The clear and present danger test was articulated: “the question in every case is whether the words used are used in such circumstances and are of such a nature to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent (Schenck, 972)”. Compared to the clear and present danger test, the Brandenburg test provided greater deference to First Amendment protections than to the state interest of public safety. The Court, in Brandenburg, focused on the right of people to advocate any viewpoint they support. The Court articulated, “the mere abstract teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action (Brandenburg, 982)” The first prong of the Brandenburg test focuses on the imminence of the illegal conduct. In relation to this prong, the facts of Brandenburg are pertinent. The KKK has glaring similarities to terrorist organizations. The KKK is an extremist group whose values do not represent a majority opinion held in the United States. Also, one of the KKKs main goals is to violently harm a group of people. In both the videos mentioned in the facts of the Brandenburg case, members carried weapons and chanted derogatory and seemingly threating phrases including, “Personally, I believe the nigger should be returned to Africa, and Jew returned to Israel (Brandenburg, 981).” Terrorist groups often employ similar tactics. When the first prong of the Brandenburg test was applied to the KKK videos, no imminent threat was determined to be present and since the terrorist organizations typically impose similar recruitment methods, membership in these groups would not equate to an imminent threat. The question of imminence, in relation to large group, was examined further in Dennis v United States. In Dennis, the defendant’s conviction under the Smith Act for attempting to overthrow the United States government by violent means was upheld. In this plurality decision, the Court articulates that this case differs from many others in similar situations because the Communist party was a well-established organization and had a substantial following. Justice frankfurter noted, “the Communist doctrine was a matter of common knowledge that ‘would amply justify a legislature in concluding that recruitment of addition member for the Party would create a substantial danger to nation security (Dennis, 979).” This plurality, however, was then overbroadly used in cases that followed. The Dennis holding was an …show more content…
This prong emulates the clear portion of the clear and present test, but the Court required a much less abstract clarity than was permitted under the previous test. This differentiation was a primary reason why the Court switched to allow fewer exceptions to be made to First Amendment protections. In Gitlow v. United States, Justice Sanford applies an analogy in regard to incitement, “A single revolutionary spark may kindle a fire that, smoldering for a time, may burst into a sweeping and destructive conflagration. The State cannot be said that the State is acting arbitrarily or unreasonable when in the exercise of its judgment as to the measures necessary to protect the public peace and safety, it seeks to extinguish the spark without waiting until it has enkindled the flame or blazed into the conflagration (Gitlow, 974).” This metaphor is a quintessential example of the pre-Brandenburg test determination of incitement. Although, this metaphor, however, would likely not be used in modern day First Amendment interpretation many still use this justification as an explanation for inhibiting members from joining terrorist