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Digitizing Brandenburg: Common Law Drift Toward A Causal Theory Of Imminence, J. Remy Green
Digitizing Brandenburg: Common Law Drift Toward A Causal Theory Of Imminence, J. Remy Green
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The Supreme Court’s Brandenburg v. Ohio test provides an exception to the First Amendment’s broad guarantee of freedom of speech. Where speech is (1) directed to inciting or producing imminent lawless action, and (2) is likely to incite or produce such action, the First Amendment withdraws its promise of protection. Thus, where the “imminence” of lawless action cannot be shown, free speech cannot be restricted. Since Brandenburg, Courts have applied a test for imminence that turns on proximity in space and in time — that is, the test evaluates how spatiotemporally imminent lawless activity is. In this Article, I argue …