First Amendment Envelope Pushers: Revisiting the Incitement-to-Violence Test with Messrs. Brandenburg, Trump, & Spencer

This Article examines weaknesses with the United States Supreme Court’s Brandenburg v. Ohio incitement test as its fiftieth anniversary approaches. A lawsuit targeting Donald Trump, as well as multiple cases pitting white nationalist Richard Spencer against public universities, provide timely springboards for analysis. Specifically, In re Trump: 1) illustrates difficulties in proving Brandenburg’s intent requirement via circumstantial evidence; and 2) exposes problems regarding the extent to which past violent responses to a person’s words satisfy Brandenburg’s likelihood element. Additionally, the Spencer lawsuits raise concerns about: 1) whether Brandenburg should serve as a prior restraint mechanism for blocking potential speakers from campus before they utter a single word; and 2) the inverse correlation between government efforts to thwart a heckler’s veto via heightened security measures and Brandenburg’s imminence requirement. Ultimately, this Article analyzes all three key elements of Brandenburg—intent, imminence and likelihood—as well as its relationship to both the heckler’s veto principle and the First Amendment presumption against prior restraints