Brooklyn Law Review


The incitement standard announced in Brandenburg v. Ohio, which bars government officials from punishing advocacy of illegal activity unless it is directed and likely to imminently incite such activity, is one of the most speech-protective tests in the Supreme Court’s jurisprudence. However, terrorist advocacy – glorification of violence, spreading of propaganda, and recruitment of individuals to their cause – is putting pressure on the Brandenburg standard. Scholars have suggested working around Brandenburg’s incitement standard to counter the dangerous influence of terrorist advocacy, especially online advocacy. Although scholars’ concern with the harms of terrorism is understandable, their willingness to alter Brandenburg in the context of terrorist advocacy ignores the important role that the imminence requirement plays in preventing government officials from using national security crises to suppress dissent. This essay explores the history leading to the Brandenburg standard to illustrate how the lack of an imminence requirement allows officials to arbitrarily target the speech of disfavored groups. It further explores how altering Brandenburg based on the nebulous concept of “terrorism” heightens the risk of arbitrary punishment of speakers.