Brandenburg in a Time of Terror

For four decades, the Supreme Court's decision in Brandenburg v. Ohio has been celebrated as a landmark in First Amendment law. In one short unsigned opinion, the Court distanced itself from the embarrassment of the Red Scare and adopted a highly protective test that permits advocacy of unlawful conduct in all but the most dangerous cases. But 9/11 and the threat of terrorism pose a new challenge to Brandenburg. Although the government has not resorted to the excesses of McCarthyism, it has taken disturbing steps to silence the speech of political dissenters. These efforts raise questions about the adequacy of Brandenburg to protect speech during a time of crisis and fear. They also highlight ambiguities in the Brandenburg test that have been largely ignored by courts. For instance, does Brandenburg apply during war as well as peace? Does it apply to private advocacy as well as public advocacy? And is there anything about the current terrorist threat that would make its protections inapplicable? To answer these and other important questions, this Article undertakes a comprehensive reexamination of Brandenburg and the issue of criminal advocacy. It begins by demonstrating that Brandenburg has been gradually eroded by lower courts, both before and after 9/11. It then examines two fundamental questions at the heart of Brandenburg that have never been adequately answered: (1) Why should criminal advocacy be protected in the first place? and (2) How much protection should it receive? The Article argues that criminal advocacy should be protected because it furthers the underlying values of the First Amendment, including the search for truth, self-government, and self-fulfillment. It then rejects claims that criminal advocacy should receive less than full protection and explains, for the first time, that Brandenburg is properly understood as an application of strict scrutiny to a particular category of speech. Finally, the Article draws upon this reconceptualization of Brandenburg to resolve the many ambiguities in its framework. INTRODUCTION I. CRIMINAL ADVOCACY AND THE FIRST AMENDMENT; BRANDENBURG AND BEYOND A. The Brandenburg Decision B. Brandenburg in the Lower Courts C. The al-Timimi Case II. WHY SHOULD CRIMINAL ADVOCACY BE PROTECTED? III. How MUCH PROTECTION SHOULD CRIMINAL ADVOCACY RECEIVE? A. Criminal Advocacy and Situation-Altering Utterances B. Speaker Intent C. Dangerousness D. Brandenburg As Strict Scrutiny IV. FILLING IN THE BRANDENBURG FRAMEWORK A. What Does "Likely" Mean? B. What Does "Imminent" Mean? C. Is the Gravity of the Harm Relevant? D. Public v. Private Speech and Ideological v. Nonideological Speech E. Brandenburg in War and Peace F. Is Advocacy of Terrorism Different? CONCLUSION INTRODUCTION One of the oldest and most important questions in First Amendment law is whether the government can prohibit speech that encourages others to break the law. This question was at the heart of the Supreme Court's first major speech cases in the early twentieth century and was the focus of significant debate until the 1969 case of Brandenburg v. Ohio. (1) In that decision, the Court ruled that "advocacy of the use of force or of law violation" cannot be punished unless it is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." (2) More protective of speech than any prior test, (3) the Brandenburg test has provided the governing standard in this area for four decades and is often hailed as the final word on the government's power to restrict criminal advocacy. (4) As the distinguished scholar Harry Kalven once said, the Court's decision in Brandenburg was "the perfect ending to a long story." (5) But the story may not be over after all. The fallout from 9/11 and the "war on terror" are placing new pressures on the First Amendment that even Brandenburg may not be able to bear. …