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The Brandenburg Test and Online Radicalism

by Viktoria Stojceski

Introduction

Freedom of speech in the United States is not truly lenient, as incitement occupies one of the most contested spaces in American constitutional law. It sits at the intersection of free expression, public safety, and the state’s ability to regulate speech that poses a real-world risk of harm. “Incitement” refers to speech that instigates or persuades another to commit a crime.13 But unlike other speech doctrines, the Supreme Court has never provided a statutory definition of incitement, nor has it articulated a consistent framework for determining when the line from free speech to illegality has been crossed. Instead, the modern understanding of incitement rests almost entirely on judicial interpretation established in Brandenburg v. Ohio (1969). Under this approach, the government may only punish advocacy when the speech has intent, imminence, and likelihood. While this formulation is often praised as a triumph for civil liberties, it may also leave vast areas unresolved, especially in modern contexts.

The test presumes a clear causal link between a speaker and an audience, imagines a discrete moment when advocacy triggers unlawful conduct, and assumes speech operates in an environment where immediacy is both observable and definable. These assumptions reflect the social, technological, and political realities of 1969. However, they do not reflect the world in which incitement occurs today. Contemporary forms of communication complicate every element of the Brandenburg framework. For example, speech spreads through digital media, radicalization occurs gradually, and harmful advocacy often takes place through coded language and dog-whistling rather than explicit commands. In online radicalization, there is no established imminence or likelihood; rather, it is a slow-burn down a dangerous path that can lead to violence.

This is not meant to undermine the guidance that the Brandenburg has provided in the judiciary. Incitement jurisprudence is extremely relevant in protecting political speech. Still, tensions expose a fundamental problem at the heart of said incitement jurisprudence: the constitutional test designed to regulate dangerous advocacy is both underinclusive and outdated, leaving the federal system without a coherent method for addressing emerging forms of communicative harm. The Brandenburg test sought to protect political speech from the overreach characteristic of earlier eras. However, in doing so, it established a framework that is too context-dependent to function effectively in the contemporary landscape and one that protects even terrorist advocacy. Although Brandenburg’s establishment was revolutionary, its two-pronged framework is ill-suited for modern forms of incitement such as online radicalization that will lead to domestic terrorism.

Clear and Present Danger Test

Before Brandenburg, the test for determining incitement was the clear and present danger test, as established in Schenck v. United States (1919). Charles Schenck, a prominent political leader of the Socialist Party, felt strong discontent toward the World War I draft. He believed the draft to be unconstitutional under the Thirteenth Amendment because it promoted involuntary servitude. Moved by the lack of representation citizens had in the formation of the draft, Schenck began handing out leaflets urging draftees to resist. Notably, the leaflets urged that this action be carried out only through peace.

Nevertheless, Schenck was charged with violating the Espionage Act of 1917. “Whoever, when the United States is at war, shall willfully make…false statements with intent to interfere with the operation…of the military or naval forces of the United States …shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both.”14 Schenck argued that his protest was protected under the First Amendment. On March 3rd, 1919, the Supreme Court ruled unanimously that the charges set against Schenck be upheld. Not only was he violating the Espionage Act, but he was also inciting others to do so. The Supreme Court recognized this and, as a result, established the clear and present danger test.15

The clear and present danger test was a simple way to determine whether speech was inciting lawless action. Essentially, if the Court decided that the speech in question is direct and that a substantive evil might follow, the government had a duty to prevent it from occurring. This was the first significant free-speech precedent set by the Court. It provided a doctrine under which Justices could determine whether speech incites crime and was used in multiple cases to reach rulings. Although it offered some guidelines for deciding incitement, the test was extremely vague, especially when persecuting someone for political speech. For instance, if a political activist was simply educating others on Communism as a new form of political and economic system in the nation, Justices may view the “substantive evil” that may follow from the speech as something they have the duty of preventing, which sends a person with no harmful intentions to jail.

This is precisely what happened in Dennis v. United States (1951). Eugene Dennis, along with other Communist representatives, had the idea to educate and advocate for a Communist regime publicly. However, these events occurred during the Cold War, and within that, the Red Scare. During this period in history, those who advocated for a shift toward communism, or those who were associated with having relations to communist advocacy, would be criminalized and incarcerated. They were charged under the Smith Act, which prohibits any conversation surrounding the violent overthrow of the government. Defense argued that the Smith Act was unconstitutional as it prevented many forms of political speech. Not only that, but they did not advocate for violence or even an overthrow. However, using the clear and present danger test, the courts decided that since the conversation surrounding communism during the Red Scare was alarming and violent, they had the duty to prevent the substantive evil that may have followed.Dennis and his associates were found guilty of incitement under the Smith Act.16

This is a blatant example of political persecution by the clear and present danger test. The interpretational vagueness allowed Justices to convict political outliers. This “you’re either with us or against us” attitude struck fear into political activists, preventing them from voicing their concerns freely, which is considered an infringement of the First Amendment. The ability to criticize the government and offer suggestions through education is a democratic right granted by the Constitution, so undermining this right through ambiguous precedent is problematic. This illustrates the abuse of power that Justices practiced under the clear and present danger test.

The Bad Tendency Doctrine

Speech suppression jurisprudence was prevalent long before Schenck. In this case, it wasn’t verbalized speech that was attacked but published work. Thomas Patterson was the owner and a writer for a Colorado newspaper. In one of the newspaper’s issues, he wrote criticizing words toward the Colorado Supreme Court Justices, stating that they are morally corrupt, specifically with their decisions surrounding the 1904 election results. The Colorado election of 1904 was the “most corrupt election in Colorado history.” Colorado issued a contempt citation because his words trespassed on the court’s dignity. Patterson argued that this violated freedom of the press. This case was brought up to the Supreme Court of the United States, making it Patterson v. Colorado (1905).17 The Court upheld the citation because it felt the article blemished the public’s trust in the courts. The precedent they set was that the courts cannot stop publishers from publishing their work, but they can punish them for doing so.

The leading guideline in their decision was the bad tendency doctrine, stating that if the speech had a “bad tendency” to cause harm, then it was a form of incitement. This case “demonstrate[s] … hostility towards non-conformity and … broad constitutional reach of the concepts of “likelihood” and “tendency” to include, without any evidence beyond the act of speech itself, remote tendencies and mere possibilities.”18 The decision to uphold the conviction was not based on logic but on fantasy. This put a strain on publishers due to the fear of being convicted for simply exercising their right to the press, limiting what publishers can include in their work.

The Brandenburg Test

The courts began to understand that political speech and incitement are separate issues. Speech, even if considered controversial, should be protected. All the obscure and fragile framework was fixed in a landmark case that established the modern doctrine for incitement. Clarence Brandenburg was a KKK leader in Ohio, hosting frequent rallies with weapons such as guns present. The case was for a statement made in one of his speeches, as follows:

“This is an organizers’ meeting. We have had quite a few members here today which are — we have hundreds, hundreds of members throughout the State of Ohio. I can quote from a newspaper clipping from the Columbus, Ohio, Dispatch, five weeks ago Sunday morning. The Klan has more members in the State of Ohio than does any other organization. We’re not a revenge organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some vengeance taken.”19

Ohio had criminal syndicalism laws banning speech that made it illegal to advocate for crimes or unlawful terrorism through organizations. Brandenburg’s speech loosely incited an insurrection, so Ohio charged him under these criminal syndicalism laws. Brandenburg, however, argued that the laws suppressed freedom of speech and assembly, urging them to drop the charges due to unconstitutionality.

The case made its way up to the Supreme Court of the United States in Brandenburg v. Ohio (1969). The question became: “Did Ohio’s criminal syndicalism law, prohibiting public speech that advocates various illegal activities, violate Brandenburg’s right to free speech as protected by the First and Fourteenth Amendments?”20 Ultimately, the courts ruled in favor of Brandenburg, stating that the Ohio criminal syndicalism laws were too infringing on the First Amendment. The Court ruled that the speech itself had no imminence and therefore not incitement. This was the first case where political speech, despite ideology, was guaranteed constitutional protect. Through this decision, the Supreme Court established the modern Brandenburg Test, a two-pronged test used to determine incitement. “A state may not forbid speech advocating the use of force or unlawful conduct unless this advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”21 Speech is considered incitement if there is intent for incitement; if the incited crime is probable, and the incited crime will happen soon. This de facto overturned the bad tendency doctrine and the clear and present danger test, becoming the established doctrine for determining the incitement of lawless action.

The two-prong test requires three definitions: imminence, likelihood, and intent. However, there has been no legal definition for any of these words, which leaves a significant portion of the doctrine up to interpretation. It is almost impossible to determine if speech will ‘likely’ result in crime since “such speech creates at least some risk that listeners will respond by breaking the law,”22 but it seems misleading for a lack of such crucial definition. On the other hand, the courts have not given a definition to ‘probable cause,’ describing it “as a flexible, context-dependent concept.”23 If common sense is applied to the definition of probable cause, then the same concept should be applied to ‘likely,’ along with ‘imminent.’ Additionally, if a crime is not likely, then it is not imminent, making the two terms mutually exclusive. As for intent, the same common-sense approach can and should be applied by understanding the questioned person’s history and ideology.

Online Radicalization

But does common sense apply when speech becomes digital? The original concept of the Brandenburg test did not consider the rise of digital media. Verbalized words are forgotten, but posts, texts, and videos stay online forever. How does someone determine if online speech is inciting a crime under Brandenburg requirements?

The short answer is that Brandenburg cannot be applied to online incitement speech. The ‘intent’ element cannot be fulfilled when examining a post because when creating a hateful social media post, it is usually done out of negligence or recklessness, and “a simply negligent or reckless intent is likely not enough to satisfy this intent element.”24 If intent cannot be fulfilled, then the Brandenburg test is not applicable. This is not necessarily insufficient not all speech laws are meant to protect all areas of speech equally. For instance, there are stricter fines and jailtime when threatening a police officer as compared to threatening a non-police officer. However, there is a punishment for both that is strengthened by legislature and common law. This does not apply to verbal threats and online threats.

Facebook and Twitter are the sites for white-supremacist groups that advocate for violence; however, the Court has been reluctant to label this as terrorist advocacy. Rather, they have considered it ‘hate speech’.25 Hate speech can be defined as “offensive discourse targeting a group or an individual based on inherent characteristics (such as race, religion or gender) and that may threaten social peace,”26 although, there is no definition given by the Courts.

Although these groups openly advocate for violence, “there is little discussion of their speech in the context of the Brandenburg debate.”27 This has created many complications surrounding domestic terrorism laws, especially when it comes to a true threat versus advocacy. In 2015, Dylann Roof shot nine black worshippers at Emanuel African Methodist Episcopal Church during a Bible study. Roof announced he was there “to shoot black people,” and during the shooting, he said “Y’all are raping our women and taking over the country. This must be done.”28 This act of violence supported by his online white-supremacist blog fanbase, fueling his dangerous ideology.

Days later, they found a white supremacist manifesto on his website, which he revealed was inspired by research on black-on-white crime and the conspiracy surrounding white genocide. Despite all the evidence showing otherwise, the government refuses to label this as a terrorist attack because it was not fueled by inciting speech, but by hate speech. The Brandenburg test does not hold any value to online terrorism advocacy:

As terrorist organizations increasingly urge non-members to engage in violent acts or otherwise glorify violence, spread propaganda, and recruit individuals to their cause, scholars and policy makers express concern about the dangerousness of such advocacy. Although such terrorist advocacy does not meet Brandenburg’s strict requirements, some scholars have suggested altering or working around Brandenburg’s incitement standard.29

However, amending the doctrine would not work because then it re-purposes it. Terrorism is an entirely different category because, although it causes extraordinary harm, it is covert in its nature of operation.30 In short, terrorist advocacy and the threat of terrorism are two different things, so special cases like Roof’s actions should not cause a doctrine of over fifty years to be rewritten.

Solutions

Rewriting Brandenburg is not the solution to criminalizing online speech. Fundamentally, Brandenburg is meant to protect speech, not punish it. However, considering that in the West, through social media, “far-right extremism alone has risen 250% over the last five years,”31 it is time for a change that protects the youth and targeted individuals.

It has been suggested that “to assess social media-algorithmic incitement, the Court should craft a less stringent sliding-scale standard, one that balances likelihood against intent and imminence such that when lawless action is extremely likely, intent can be reckless, and lawless action does not have to be as imminent as Brandenburg requires.”32 This suggests that rather than making it a test where both requirements need to be fulfilled, they can be weighed against each other. This means that although intent may be reckless, if the threat is imminent or likely, it can still be charged. Culpability required to be charged changes in this new test, offering a less strict assessment of mens rea.

Another potentially effective means of criminalizing online radical terrorism is the United Nations’ Rabat Plan of Action, created for incitement to hatred. The Rabat Plan of Action is a six-part test, “(1) the social and political context, (2) status of the speaker, (3) intent to incite the audience against a target group, (4) content and form of the speech, (5) extent of its dissemination and (6) likelihood of harm, including imminence.”33 If the United States were to adopt this plan into some form of legislature or case law, Courts would be required to assess the person’s beliefs, the socio-political context, the intention, the language used, the audience outreach, and the probability. Ironically, the First Amendment protects this kind of speech.

Creating any law that prohibits speech, unless there are serious implications to the speech, is unconstitutional. However, the same way that the Brandeburg test is an exception, the Rabat Plan of Action can be too. Of course, the social, cultural, and political climates in Rabat and the United States are contrasting. However, the motivation is the same: the need for protecting targeting individuals against potential violence.

Conclusion

Ultimately, the Brandenburg test’s status in modern First Amendment discourse is both the most protective for political expression and one of the least adaptable tools for evaluating the dangers posed by contemporary forms of advocacy. Its historical purpose remains essential, yet it is not applicable in important modern-day contexts such as social media. The digital era does not fit into the assumptions that Brandenburg offers. Online radicalization develops slowly, audiences are anonymous and unbounded, and the harms that result do not occur “immediately” after a particular post or message, as required by the test.

This, however, does not mean that the test should be discarded or deemed irrelevant in any way. Rather, the challenge is to reconcile Brandenburg’s constitutional value with the realities of twenty-first-century communication through additional legislation or case law. Proposals such as a sliding-scale framework or the adoption of elements from the Rabat Plan of Action highlight a growing recognition that the law needs additional tools that can identify dangerous patterns of advocacy without collapsing back into the suppression of problematic viewpoints. The Courts went from bad tendency, to clear and present danger, to Brandenburg. Expansion and modernization are prevalent in incitement jurisprudence, so the same process should be applied to online radicalization. The goal is not to criminalize speech but to create a coherent, principled method for distinguishing constitutionally protected expression from speech that operates as a precursor to violence.

Notes

  1. Incite, Legal Information Institute.
  2. Espionage Act of 1917 § 3, ch. 30, 40 Stat.
  3. Schenck v. United States, Oyez.
  4. Dennis v. United States, Oyez.
  5. John R. Vile, Patterson v. Colorado, Free Speech Center, Jan. 1, 2009.
  6. Edward J. Bloustein, The First Amendment Bad Tendency of Speech Doctrine, 43 RUTGERS L. REV. 507 (Spring 1991).
  7. Brandenburg v. Ohio, 395 U.S. 444 (1969).
  8. Brandenburg v. Ohio, Oyez.
  9. Brandenburg, 395 U.S. 444 (1969).
  10. Thomas Healy, Brandenburg in a Time of Terror, 84 Notre Dame L. Rev. 655 (2009).
  11. Probable cause, Legal Information Institute.
  12. Anna Rhoads, Incitement and Social Media-Algorithmic Speech: Redefining Brandenburg for a Different Kind of Speech, 64 Wm. & Mary L. Rev. 525 (2022).
  13. Christina E. Wells, Assumptions About “Terrorism” and the Brandenburg Incitement Test, 85 Brook. L. Rev
  14. United Nations, What is hate speech?, Hate Speech.
  15. Wells, Assumptions About “Terrorisim” and the Brandenburg Incitement Test, 85 Brook. L. Rev.(2019).
  16. Jesse J. Norris, Why Dylann Roof Is a Terrorist Under Federal Law, and Why It Matters, 54 Harv. J. on Legis. 502 (2017).
  17. Wells, Assumptions About “Terrorisim” and the Brandenburg Incitement Test, 85 Brook. L. Rev. (2019).
  18. Healy, Brandenburg in a Time of Terror, 84 Notre Dame L. Rev. 655 (2009)
  19. The Soufan Center, IntelBrief: September 9, 2025, The Soufan Center (Sept. 9, 2025).
  20. Rhoads, Incitement and Social Media-Algorithmic Speech: Redefining Brandenburg for a Different Kind of Speech, 64 Wm. & Mary L. Rev. 525 (2022).
  21. Office of the United Nations High Commissioner for Human Rights (OHCHR), OHCHR and freedom of expression vs incitement to hatred: the Rabat Plan of Action.