75 Pages Posted: 21 May 2008
Date Written: 2008
For four decades, the Supreme Court's decision in Brandenburg v. Ohio has been celebrated as a landmark in First Amendment law. In one short unsigned opinion, the Court distanced itself from the embarrassment of the Red Scare and adopted a highly protective test that permits advocacy of unlawful conduct in all but the most dangerous cases. But 9/11 and the threat of terrorism pose a new challenge to Brandenburg. Although the government has not resorted to the excesses of McCarthyism, it has taken disturbing steps to silence the speech of political dissenters. These efforts raise questions about the adequacy of Brandenburg to protect speech during a time of crisis and fear. They also highlight ambiguities in the Brandenburg test that have been largely ignored by courts and scholars. For instance, does Brandenburg apply during war as well as peace? Does it apply to private advocacy as well as public advocacy? And is there anything about the current terrorist threat that would make its protections inapplicable?
To answer these and other important questions, this Article undertakes a comprehensive reexamination of Brandenburg and the issue of criminal advocacy. It begins by demonstrating that Brandenburg has been gradually eroded by lower courts, both before and after 9/11. It then examines two fundamental questions at the heart of Brandenburg that have never been adequately answered: (1) Why should criminal advocacy be protected in the first place? and (2) How much protection should it receive? The Article argues that criminal advocacy should be protected because it furthers the underlying values of the First Amendment, including the search for truth, self-government, and self-fulfillment. It then rejects claims that criminal advocacy should receive less than full protection and explains, for the first time, that Brandenburg is properly understood as an application of strict scrutiny to a particular category of speech. Finally, the Article draws upon this reconceptualization of Brandenburg to resolve the many ambiguities in its framework.
Keywords: Brandenburg, free speech, first amendment, incitement, terrorism, criminal advocacy
Suggested Citation: Suggested Citation
Healy, Thomas, Brandenburg in a Time of Terror (2008). Notre Dame Law Review, Vol. 84, 2008; Seton Hall Public Law Research Paper No. 1135363. Available at SSRN: https://ssrn.com/abstract=1135363