Social and Behavioral Sciences Commons^™

Clear And Present Danger: Brandenburg Test After September 11, 2001, James Connor Best

LSU Master's Theses

In a post-September 11, 2001 America and in light of the very real threat posed by radical Islamic terrorist, the courts must rethink the line between protected speech and incitement to violence. The Brandenburg test, which was previously understood to be the modern test to distinguish protected from unprotected advocacy, should be questioned. By examining the development of the Court's First Amendment doctrine leading up to Brandenburg v. Ohio (1969), I establish that Brandenburg is ill fitted to be applied to advocacy of terrorism. In Brandenburg, the Court actually conflated two previously distinct speech tests-Judge Learned Hand's incitement test and …