What is the Brandenburg test used for?
Asked by: Francesco Zieme | Last update: February 5, 2026Score: 4.9/5 (72 votes)
The Brandenburg Test, from the Supreme Court case Brandenburg v. Ohio, determines when speech advocating illegal action can be prohibited under the First Amendment; it protects speech unless it is (1) directed to inciting or producing imminent lawless action AND (2) is likely to incite or produce such action, setting a high bar for restricting speech, even if unpopular or offensive.
What is the Brandenburg test and how is it used?
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.
What is another name for the Brandenburg test?
Brandenburg test ("imminent lawless action" test)
The three distinct elements of this test (intent to speak, imminence of lawlessness, and likelihood of lawlessness) have distinct precedential lineages.
How is the incitement test used?
The incitement standard announced in Brandenburg v. Ohio, which bars government officials from punishing advocacy of illegal activity unless it is directed and likely to imminently incite such activity, is one of the most speech-protective tests in the Supreme Court's jurisprudence.
Did the Brandenburg test replace the clear and present danger Test?
However, the "clear and present danger" criterion of the Schenck decision was replaced in 1969 by Brandenburg v. Ohio, and the test refined to determining whether the speech would provoke an "imminent lawless action".
What Is The Brandenburg Test? - Making Politics Simple
Is the clear and present danger test still used today?
The imminent lawless action test has largely supplanted the clear and present danger test. The clear and present danger remains, however, the standard for assessing constitutional protection for speech in the military courts.
What speech is not protected?
Speech not protected by the First Amendment generally falls into categories like incitement to imminent lawless action, true threats, obscenity, defamation (libel/slander), fighting words, fraud, child pornography, and speech integral to criminal conduct, though the lines can be narrow and context-dependent, with the bar for unprotected speech being very high. These exceptions don't apply to lies in general, which are usually protected, but do cover specific harmful falsehoods like fraud and defamation.
What are the three things that are not covered under the freedom of speech?
Only that expression that is shown to belong to a few narrow categories of speech is not protected by the First Amendment. The categories of unprotected speech include obscenity, child pornography, defamatory speech, false advertising, true threats, and fighting words.
Is incitement illegal in the UK?
Incitement is, in origin, a common law offence. However, it "is not widely used by prosecutors in England". [71] It is an offence to incite another person to commit a criminal offence even though that other offence has not been committed or even attempted[72].
Is free speech imminent danger?
The following speech may not be protected: Speech that is intended and likely to provoke imminent unlawful action (“incitement”). Statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals (“true threats”).
At what point is hate speech illegal?
(The Supreme Court's decision in Snyder v. Phelps provides an example of this legal reasoning.) Under current First Amendment jurisprudence, hate speech can only be criminalized when it directly incites imminent criminal activity or consists of specific threats of violence targeted against a person or group.
Did Brandenburg overturn Schenck?
Brandenburg v. Ohio, a 1969 Supreme Court case, abrogated Schenck and provided for the stricter Brandenburg Test, which only allowed a law to limit speech if it incited imminent unlawful action.
What does the Supreme Court say about burning the flag?
The U.S. Supreme Court has ruled flag burning is a form of symbolic speech protected by the First Amendment in the landmark case Texas v. Johnson (1989), stating the government cannot prohibit expression just because society finds it offensive. This decision invalidated state laws banning flag desecration and was reaffirmed in *United States v. Eichman (1990), which struck down a federal law attempting to ban it.
What is the legal standard for incitement to violence?
Incitement. Incitement — speech that is both “directed to inciting or producing imminent lawless action and is likely to incite or produce such action” — is unprotected by the First Amendment. The standard comes from the Supreme Court's 1969 decision in Brandenburg v.
Who is Brandenburg?
In late medieval and early modern times, Brandenburg was, with varying borders, one of seven electoral states of the Holy Roman Empire, and, along with Prussia, formed the original core of the German Empire, the first unified German state.
Why is a Supreme Court ruling so important?
The Supreme Court is the highest court in our nation. It's charged with ensuring equal justice under the law, as well as upholding rights guaranteed by the Constitution. The court's decisions shape how our rights are interpreted over the course of generations, and in some cases even centuries.
Can you legally swear at the police in the UK?
It can be unpleasant and insulting when some members of the public behave in an abusive and aggressive way to police officers. Furthermore, the courts do not accept that simply swearing at a police officer is sufficient grounds for an arrest.
Can you be charged with hate speech?
Free speech is protected by the First Amendment of the United States Constitution, even when it may contain hateful or inflammatory ideas. So, while it may hurt and frighten people and communities, it is not a crime to speak or write words that advocate hate and bigotry.
What is the 3 strike rule in the UK?
This is also known as the “three-strike rule” in sentencing law in England and Wales. This is because if you reach three strikes in drugs trafficking convictions, you must serve 7 years in prison unless the Judge thinks that it would be unjust to do so considering all the circumstances.
Is the f word protected speech?
Yes, the "f-word" (profanity/obscenity) is generally protected speech under the First Amendment, as the Supreme Court has ruled that offensive or vulgar words alone aren't enough to restrict speech; however, it loses protection if it crosses into unprotected categories like "fighting words" (direct personal insults likely to provoke violence), true threats, or is part of obscenity, though courts have narrowed these exceptions significantly, as seen in the Brandi Levy case where school-related online swearing was protected.
Who cannot take away your freedom of speech?
The First Amendment states, in relevant part, that: “Congress shall make no law... abridging freedom of speech.”
Which form of speech has the least protection?
These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words — those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace.
Is it illegal to make racist comments?
In the U.S., racist comments are generally protected speech under the First Amendment, even if offensive, but they become illegal when they cross into specific categories like true threats, incitement to imminent violence, defamation, or fighting words, or when they become part of discriminatory actions in employment, housing, or public services, leading to civil rights violations or hate crimes. So, while yelling slurs on the street usually isn't a crime, using racist language to deny someone a job or threatening violence is illegal.
Which type of speech is considered unprotected?
Speech not protected by the First Amendment generally falls into categories like incitement to imminent lawless action, true threats, obscenity, defamation (libel/slander), fighting words, fraud, child pornography, and speech integral to criminal conduct, though the lines can be narrow and context-dependent, with the bar for unprotected speech being very high. These exceptions don't apply to lies in general, which are usually protected, but do cover specific harmful falsehoods like fraud and defamation.
Why is hate speech illegal?
The purpose of this law is to prevent any serious harm that may result from hate speech, including harm to the targeted group and society generally.