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Advocacy, True Threats, and the Constitution

Posted: 9 Jan 2011  

Mark Strasser

Capital University - Law School

Date Written: January 6, 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

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:

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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