a. This case expressly overruled Whitney, which had upheld a
Criminal Syndicalism statute nearly identical to that struck down in
b. The two-part Brandenburg standard combines aspects of both
Holmes-Brandeis and Hand tests, in a way that gives “double
protection” to speech:
1. Holmes-Brandeis aspect: The Holmes “clear and present
danger” legacy is reflected in the requirement that the speech be
“likely to incite or produce” imminent unlawful action. Thus the
concern with immediate, likely, consequences remains.
2. Hand aspect: But Brandenburg also reflects Hand’s insistence
in Masses that what should be restricted is only direct advocacy of
action, not mere advocacy of abstract doctrine. This distinction is
imposed by the requirement that the speech be “directed” (i.e.,
“intended”) to “inciting” or “producing” an unlawful response.
The benefit of this approach is that the Hand aspect is a check on
the Holmes-Brandeis approach, which is subjective. The
Holmes-Brandeis aspect is a check on Hand’s approach, which does not
deal with the “harmless inciter.”
c. Dennis would have come out differently under Brandenburg
because the Communist Party was not likely to incite imminent lawless
action (the strong version of the Holmes-Brandeis test that Dennis
got rid of).
d. Because of the combination of the Holmes-Brandeis approach
with Hand’s approach, Brandenburg represents the greatest protection
for political speech yet established by the U.S. Supreme Court.
e. It is not clear to what types of speech, besides political
speech, Brandenburg will apply to. For example, will it cover
someone who tells another person, “I will kill you”? This is a very
important unresolved point.
f. On exam, Dave says apply Brandenburg, since this is the
current, binding case. But, when applying Brandenburg, refer to how
to Masses and the Holmes-Brandeis test were incorporated. Also, if
the fact pattern resembles, say, Abrams, point that out, show how the
facts would have come out under Abrams, and how they would have come
out differently (if they would) under the modern-day Brandenburg
test. You get the idea. Just don’t go into each one of the tests
above and waste a lot of time.
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