Terrorist Advocacy and Exceptional Circumstances

22 Pages Posted: 25 Jan 2018 Last revised: 26 Jan 2018

See all articles by David S. Han

David S. Han

Pepperdine University - Rick J. Caruso School of Law

Date Written: January 19, 2018


To all but the most extreme free speech absolutists, First Amendment protection has practical limits. That is, some tipping point exists at which the actual and potential harms associated with speech are so exceptionally severe as to justify a departure from longstanding First Amendment doctrines and principles, such that even fully protected speech may be constitutionally regulated. In recent years, as violent and deplorable acts of terrorism have multiplied both here and abroad, some scholars have suggested that this tipping point has been reached with respect to terrorist advocacy. As such, they have proposed broad revisions to First Amendment doctrine — such as modification of the Brandenburg incitement standard — in response to these circumstances.

This essay explores the question of how courts should proceed if and when this tipping point is ever reached. It argues that courts should not resort immediately to broad doctrinal revision in evaluating and accounting for these sorts of exceptional circumstances, but rather should always adhere — at least initially — to narrow strict scrutiny analysis as is required under the current doctrinal framework. By adhering to strict scrutiny, courts send an important message that valid government regulation of abstract advocacy is truly exceptional and that prevailing doctrine is sticky and not easily changed. Furthermore, this narrow approach affords courts the time, space, and case-by-case experience to carefully consider whether the present circumstances are truly indicative of a fundamentally changed reality or merely a troublesome outlier.

To be sure, broad doctrinal revision may ultimately be inevitable; perhaps our present communications culture is so fundamentally different from the world of Brandenburg that some categorical recalibration will be necessary. But as our history has shown, any incredibly weighty decision to systematically limit the scope of First Amendment protection — a decision that may not be easily reversible — calls for epistemic humility and cautious incrementalism. Adhering to narrow strict scrutiny analysis as an intermediate step to more far-reaching doctrinal revision helps to ensure that any such broad revision is the product of substantial deliberation and made at a sober distance, rather than a knee-jerk response driven by the often distorted perceptions of the present moment.

Keywords: First Amendment, Freedom of Speech, Constitutional Law, Legal Theory

JEL Classification: K00, K1, K10, K3, K30

Suggested Citation

Han, David S., Terrorist Advocacy and Exceptional Circumstances (January 19, 2018). Fordham Law Review, Vol. 86, No. 2, 2017, Pepperdine University Legal Studies Research Paper No. 2018/3, Available at SSRN: https://ssrn.com/abstract=3105525

David S. Han (Contact Author)

Pepperdine University - Rick J. Caruso School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

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