– 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.”
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