Also known as: imminent lawless actions · Brandenburg test · incitement to imminent lawless action
Written by attorneys · grounded in primary & secondary sources — see below
An element of the First Amendment standard governing when advocacy of illegal conduct loses protection. Speech urging the use of force or law violation may be punished only if it is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
Lena addressed supporters outside city hall and told them to surround the building that night and break its windows. Several listeners threw rocks at the windows hours later. Prosecutors charged Lena with incitement. The speech meets the test because it specified an immediate time and place for lawless acts that then occurred.
Quincy told live viewers to meet at the police station at midnight and smash patrol cars while harming officers. Some audience members reacted with support in the chat. The city charged Quincy with incitement. The statements cross into unprotected territory because they supplied a precise time, location, and target for immediate violence that listeners could act on.
Select any source to read its text and confirm it supports the definition.
Gemma shouted through a megaphone that supporters should raid the animal-testing lab right now and torch the testing wing. Masked listeners began moving toward the entrance. Police blocked entry before any damage occurred. Georgia charged Gemma with incitement. The words were aimed at and created a likelihood of immediate unlawful entry even though police prevented completion of the acts.
Tim told hundreds of tuition protesters to storm the administration building right now and lock staff inside their offices. Some students started walking toward the building while others cheered. The crowd dispersed minutes later without occupying the building. The city charged Tim with advocacy of lawless action. The directive language and immediate responsive movement satisfy both the direction and likelihood requirements.
Ivan climbed onto a barrier and urged restless soccer fans through a megaphone to knock down the gates and rush the field right now. Several front-row fans surged forward, forcing security to link arms. The crowd later dispersed without breaching the gates. The city charged Ivan with incitement. The urgent command combined with the agitated crowd and immediate physical reaction shows direction to and likelihood of imminent trespass.
A speaker at an economic-resistance seminar told attendees to flood a named trading floor that afternoon and pull fire alarms in listed buildings while handing out access schedules. The instructions supplied concrete timing and logistics for unlawful entry. Prosecutors charged the speaker with incitement. The same-day targeting and practical assistance establish both direction to and likelihood of imminent lawless conduct.
The advocacy must be directed to inciting or producing imminent lawless action. It must also be likely to incite or produce that action.
Abstract advocacy discusses the moral propriety or necessity of force at some indefinite future time and remains protected. Speech crosses the line when it supplies a specific time, place, and method aimed at immediate unlawful conduct that listeners are likely to undertake.
No. The test focuses on whether the words were directed to and likely to produce imminent lawless action at the moment they were spoken. Police intervention or quick dispersal after responsive movement by listeners does not erase the direction and likelihood shown by the facts.
Context such as an already agitated crowd, use of a megaphone, masked listeners moving toward a target, and distribution of access schedules helps show both direction to and likelihood of imminent lawless action. Prior peaceful conduct or later claims of hyperbole are weighed against these concrete indicators.
…of the categories of speech and expressive conduct that fall outside the First Amendment's protective sphere: words that incite "imminent lawless action," Brandenburg v. Ohio , 395 U. S. 444, 449 (1969), and "fighting" words, Chaplinsky v. New Hampshire , 315 U. S., at 571-572. The Minnesota Supreme Court erred in its application of…