Advocacy, True Threats, and the Constitution

Mark Strasser

Capital University - Law School

January 6, 2011

Hastings Constitutional Law Quarterly, Vol. 38, pp. 339-86, 2011

Brandenburg v. Ohio is thought by many to offer very robust speech protections, but the true threat exception to the First Amendment can swallow up much of the protection that Brandenburg offers. Regrettably, the Court has failed to offer guidelines to help determine when Brandenburg rather than true threat analysis applies, which has caused lower courts to reach radically different results in relevantly similar cases. Unless the Court addresses the current inconsistencies in the jurisprudence, the interests in security and in robust debate will both continue to be sacrificed.

Keywords: Brandenburg, true threats, advocacy, security, cross-burning, intent

JEL Classification: K10

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Date posted: January 9, 2011  

Suggested Citation

Strasser, Mark, Advocacy, True Threats, and the Constitution (January 6, 2011). Hastings Constitutional Law Quarterly, Vol. 38, pp. 339-86, 2011. Available at SSRN: http://ssrn.com/abstract=1736163

Contact Information

Mark Strasser (Contact Author)
Capital University - Law School ( email )
303 E. Broad St.
Columbus, OH 43215-3200
United States
614-236-6686 (Phone)
614-236-6956 (Fax)
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