Brandenburg Test
The constitutional standard for when advocacy of illegal action or violence loses First Amendment protection: it must be directed to inciting imminent lawless action and likely to produce it.
The Brandenburg test, established in Brandenburg v. Ohio (1969), defines when the government can constitutionally punish speech that advocates illegal action or violence. Under the test, the government can prohibit speech only if:
1. The speech is directed to inciting or producing imminent lawless action, AND 2. The speech is likely to incite or produce such action.
Both elements must be present. Abstract advocacy of violence, revolution, or illegal action — even advocacy of the violent overthrow of the government — is protected unless it meets both prongs of the test.
The Brandenburg test replaced the earlier 'clear and present danger' test from Schenck v. United States (1919), which was far more speech-restrictive and had been used to prosecute anti-war speech.
Brandenburg represents one of the most protective incitement standards in the world. In most countries, advocacy of violence can be punished more readily. The test has been applied to a wide range of contexts, from KKK speeches to social media posts, with courts typically finding that abstract rhetoric does not meet the imminence and likelihood requirements.