Brandenburg and Terrorism in the Digital Age

26 Pages Posted: 15 Apr 2020 Last revised: 1 Dec 2020

See all articles by David S. Han

David S. Han

Pepperdine University - Rick J. Caruso School of Law

Date Written: August 1, 2019


This essay explores the tension between the longstanding Brandenburg standard and the current technological context — one in which abstract advocacy of terrorist conduct, widely and cheaply disseminated through the internet and channeled through social media, has contributed to a number of devastating attacks such as the Orlando nightclub shooting, the Boston marathon bombings, and the shootings in San Bernardino. It does so through the lens of the Supreme Court’s recent decision in Carpenter v. United States — a Fourth Amendment case that similarly dealt with the collision between longstanding constitutional rights doctrine and significant technological change. A close examination of Carpenter helps to frame the central theoretical debate underlying Brandenburg’s continued viability, and it illuminates the normative and empirical pivot points around which the debate rests.

Keywords: Constitutional Law, First Amendment, Fourth Amendment, Freedom of Speech, Criminal Procedure

JEL Classification: K1, K10, K19, K3, K30

Suggested Citation

Han, David S., Brandenburg and Terrorism in the Digital Age (August 1, 2019). Brooklyn Law Review, Vol. 85, No. 1, 2019, Pepperdine University Legal Studies Research Paper No. 2020/26, Available at SSRN:

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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