Advocacy, True Threats, and the Constitution

Abstract:     
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

Accepted Paper Series