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Some context from a mod at /r/law
https://www.law.cornell.edu/wex/brandenburg_test
Selected Applications of the Brandenburg Test The Supreme Court in Hess v. Indiana (1973) applied the Brandenburg test to a case in which Gregory Hess, an Indiana University protester, said, “We’ll take the fucking street later (or again)." The Supreme Court ruled that Hess’s profanity was protected under the Brandenburg test, as the speech “amounted to nothing more than advocacy of illegal action at some indefinite future time.” The Court held that “since there was no evidence, or rational inference from the import of the language, that his words were intended to produce, and likely to produce, imminent disorder, those words could not be punished by the State on the ground that they had a ‘tendency to lead to violence.’”
In NAACP v. Claiborne Hardware Co.(1982), Charles Evers threatened violence against those who refused to boycott white businesses. The Supreme Court applied the Brandenburg test and found that the speech was protected: “Strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases. An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech.”
Brandenburg Test:
https://www.law.cornell.edu/wex/brandenburg_test
The test determined that the government may prohibit speech advocating the use of force or crime if the speech satisfies both elements of the two-part test:
The speech is “directed to inciting or producing imminent lawless action,” AND
The speech is “likely to incite or produce such action.”
Also of note, this is a very high standard. The KKK regularly says the same kind of stuff that Vance and Trump said and get away with it
Interesting! Thanks for doing the work on this!
I wonder if all the schools and hospitals and government buildings having to close and/or evacuate due to bomb threats will be enough for the burden of proof. It's not directly threatening language, but it certainly was a tangible, disruptive result.
Results are not relevant for proof unless they verbally requested that people call in bomb threats.
I don't think that's what the relevant case law shows. There's no legal requirement for symmetry between the words uttered and the actions undertaken by others.
First, we know that because it doesn't say that in the case law, and second because you can think of obvious examples where the speaker should be in trouble. If I yell at you to punch someone in the face and instead you kick them in the knee, probably I should be held accountable.
Forget symmetry, was there a relevant call to action in this case? An explicit call to action is definitely required for criminal liability..