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
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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
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