Law Commons^™

The First Amendment And Speech Urging Suicide: Lessons From The Case Of Michelle Carter And The Need To Expand Brandenburg'S Application, Clay Calvert

UF Law Faculty Publications

This Article examines the level of First Amendment protection that applies when a defendant-speaker is charged with involuntary manslaughter based on successfully urging a person to commit suicide. The Supreme Judicial Court of Massachusetts’ February 2019 decision in Commonwealth v. Carter provides a timely analytical springboard. The Article argues that courts should adopt the United States Supreme Court’s test for incitement created a half-century ago in Brandenburg v. Ohio before such speech is deemed unprotected by the First Amendment. It contends this standard is appropriate even in involuntary manslaughter cases where intent to cause a specific result is not required …

Digitizing Brandenburg: Common Law Drift Toward A Causal Theory Of Imminence, J. Remy Green

Faculty Scholarship

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 …

Whose Market Is It Anyway? A Philosophy And Law Critique Of The Supreme Court’S Free-Speech Absolutism, Spencer Bradley

Dickinson Law Review (2017-Present)

In the wake of Charlottesville, the rise of the alt-right, and campus controversies, the First Amendment has fallen into public scrutiny. Historically, the First Amendment’s “marketplace of ideas” has been a driving source of American political identity; since Brandenburg v. Ohio, the First Amendment protects all speech from government interference unless it causes incitement. The marketplace of ideas allows for the good and the bad ideas to enter American society and ultimately allows the people to decide their own course.

Yet, is the First Amendment truly a tool of social progress? Initially, the First Amendment curtailed war-time dissidents and …

First Amendment Envelope Pushers: Revisiting The Incitement-To-Violence Test With Messrs. Brandenburg, Trump, & Spencer, Clay Calvert

UF Law Faculty Publications

This Article examines weaknesses with the United States Supreme Court’s Brandenburg v. Ohio incitement test as its fiftieth anniversary approaches. A lawsuit targeting Donald Trump, as well as multiple cases pitting white nationalist Richard Spencer against public universities, provide timely springboards for analysis. Specifically, In re Trump: 1) illustrates difficulties in proving Brandenburg’s intent requirement via circumstantial evidence; and 2) exposes problems regarding the extent to which past violent responses to a person’s words satisfy Brandenburg’s likelihood element. Additionally, the Spencer lawsuits raise concerns about: 1) whether Brandenburg should serve as a prior restraint mechanism for blocking potential speakers …

Reconsidering Incitement, Tinker And The Heckler’S Veto On College Campuses: Richard Spencer And The Charlottesville Factor, Clay Calvert

UF Law Faculty Publications

This Essay analyzes key First Amendment issues surrounding Richard Spencer and Milo Yiannopoulos speaking on public university campuses. Some institutions (Ohio State University, Michigan State University and Pennsylvania State University) have flatly banned Spencer, citing fears of incitement to violence but also sparking federal lawsuits. Other schools have permitted Spencer to speak, but at massive security costs, in an attempt to prevent a so-called heckler’s veto. This Essay examines the tension between providing a public platform for controversial speakers and the costs associated with doing so, including the relevance of the Supreme Court’s aging incitement test created in Brandenburg v. …

Rwu First Amendment Blog: David Logan's Blog: Donald Trump And The Full-Employment-For-Lawyers Presidency, David A. Logan

Law School Blogs

No abstract provided.

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 …

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 …

Brandenburg In A Time Of Terror, Thomas Healy

Thomas Healy

No abstract provided.

Brandenburg In A Time Of Terror, Thomas Healy

Thomas Healy

No abstract provided.

Brandenburg In A Time Of Terror, Thomas Healy

Thomas Healy

No abstract provided.

Brandenburg In A Time Of Terror, Thomas Healy

Thomas Healy

No abstract provided.

Reconciling Morse With Brandenburg, Steven Penaro

Fordham Law Review

This Note examines Morse v. Frederick in connection with the Brandenburg v. Ohio test governing speech that advocates unlawful acts. In Morse, the U.S. Supreme Court devised a new test that gives school officials the power to restrict student speech promoting the use of illegal drugs. However, in Brandenburg, the Supreme Court held that speech must be struck down if the speaker intends to incite imminent lawless action and that speech is likely to produce such action. This Note argues that a relaxed application of the Brandenburg standard would be useful in prohibiting student drug speech within a school setting.

Preaching Terror: Free Speech Or Wartime Incitement?, Robert S. Tanenbaum

American University Law Review

No abstract provided.

Preaching Terror: Free Speech Or Wartime Incitement?, Robert S. Tanenbaum

American University Law Review

No abstract provided.

Inciting Terrorism On The Internet: An Application Of Brandenburg To Terrorist Websites, Thomas E. Crocco

Saint Louis University Public Law Review

No abstract provided.

What Marc Antony, Lady Macbeth, And Iago Teach Us About The First Amendment, Michael Vitiello

Nevada Law Journal

No abstract provided.

Recalibrating The Cost Of Harm Advocacy: Getting Beyond Brandenburg, S. Elizabeth Malloy, Ronald Krotoszynski Jr

Faculty Articles and Other Publications

This Article explores the possibility of shifting the cost of antisocial acts to artists, writers, and musicians when individuals decide to act on a creative artist's suggestions or, in some cases, detailed directions. The Article concludes that, at least in some limited circumstances, the First Amendment should not preclude the imposition of civil liability for those who write and distribute speech that both advocates and facilitates harm to others and proposes the creation of a new category of unprotected speech activity called Harm Advocacy.