Digitizing Brandenburg: Common Law Drift Toward a Causal Theory of Imminence

The Supreme Court’s Brandenburg v. Ohio test provides an exception to the First Amendment’s broad guarantee of freedom of speech. Where speech is (1) directed to inciting or producing imminent lawless action, and (2) is likely to incite or produce such action, the First Amendment withdraws its promise of protection. Thus, where the “imminence” of lawless action cannot be shown, free speech cannot be restricted. Since Brandenburg, Courts have applied a test for imminence that turns on proximity in space and in time — that is, the test evaluates how spatiotemporally imminent lawless activity is. In this Article, I argue that this approach is flawed, and cases involving the internet have brought this flaw to a tipping point. Past that tipping point, I propose that imminence is better understood as a causal question. That is, Brandenburg imminence should be a question of the ready-to-take-place-ness of the requisite lawless activity.At the heart of my argument is the assertion that courts are already drifting towards the results a causal test would produce. Relying on Professor David Strauss’s model of common law constitutional interpretation, I compare past common law developments to the current state of imminence law under Brandenburg and argue that imminence law is in the later stages of a common law shift. After making out the common law case for the causal approach, I argue that causal approach better squares with the underlying philosophical and normative reasoning driving First Amendment jurisprudence, propose reasoning for a causal test drawn from analogies to other areas of law where causal analysis takes place, and evaluate the implications of this theory as applied to a number of modern problems