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Mill, Holmes, Brandeis, And A True Threat To Brandenburg, Mark Strasser

Mark Strasser

John Stuart Mill argues for robust protection of free speech, and some of the essential elements of that position reflect the protections advocated by Justices Holmes and Brandeis that were eventually incorporated in Brandenburg. However, Brandenburg protections have not been analyzed in light of the developing true threats jurisprudence, most recently described and employed in Virginia v. Black. After analyzing the positions of Mill, Holmes, and Brandeis and discussing true threats jurisprudence, this article concludes that unless the Court explains how to differentiate between advocacy and true threats and, further, identifies the extent to which the Constitution protects advocacy that …

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Advocacy, True Threats, And The First Amendment, Mark Strasser

Mark Strasser

Brandenburg v. Ohio is thought by many to represent an extremely speech-protective doctrine. Yet, much of the protection offered by Brandenburg can easily be swallowed up by the true threat doctrine, which provides the basis for a robust exception to First Amendment protections. Both the Brandenburg protections and the true threat exception are important to maintain—the great challenge for the Court is to include both within the formulation and articulation of First Amendment jurisprudence so that sufficient protection is afforded to the implicated societal and the individual interests represented by each. Regrettably, rather than provide helpful guidelines that would establish …

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