Clear and present danger: Brandenburg test after September 11, 2001

In a post-September 11, 2001 America and in light of the very real threat posed by radical Islamic terrorist, the courts must rethink the line between protected speech and incitement to violence. The Brandenburg test, which was previously understood to be the modern test to distinguish protected from unprotected advocacy, should be questioned. By examining the development of the Court\u27s First Amendment doctrine leading up to Brandenburg v. Ohio (1969), I establish that Brandenburg is ill fitted to be applied to advocacy of terrorism. In Brandenburg, the Court actually conflated two previously distinct speech tests-Judge Learned Hand\u27s incitement test and Justice Oliver Wendell Holmes\u27 clear and present danger test-without explaining how these two tests fit together. In addition, the Court founded Brandenburg on sandy soil. The Court failed to distinguish between the two traditions. They cited Hand\u27s incitement tradition as precedent for the clear and present danger test. In doing so, they credited Brandenburg\u27s imminence requirement to Hand\u27s direct incitement tradition, which did not include an imminence requirement. Therefore, Brandenburg should be abandoned. I conclude that the courts should apply the clear and present danger test and the direct incitement test separately according to the particular circumstances of each case. I will give two modern examples of advocacy of terrorism. I will show how the courts would be better off applying the clear and present danger test as developed by Holmes and Brandeis in one case and the direct incitement test as developed in by Judge Hand in the other. By taking a two test approach to advocacy of terrorism, the government will better posses the tools it needs to protect national security