In 1969, the Supreme Court drew a sharp new line in the sand. In Brandenburg v. Ohio, the Court held that even inflammatory advocacy of violence is protected unless it is intended to incite and likely to produce imminent lawless action. That two-part test (intent + imminence) finally gave precision to what Holmes had only hinted at in his Abrams dissent fifty years earlier. The decision transformed free speech law by turning fear of radical speech into a constitutional virtue: danger had to be real, immediate, and deliberate before government could silence it.
The facts were as jarring as the principle. Clarence Brandenburg, a Ku Klux Klan leader, invited a television crew to film a rally where men in robes carried guns and talked about “revengeance” on the government. Ohio convicted him under a criminal-syndicalism statute forbidding advocacy of violence. But the Court reversed, explaining that speech advocating the use of force or lawbreaking cannot be punished unless it is directed to inciting imminent illegal action and likely to produce it. In other words, abstract calls for revolution are protected; only explicit instructions to act, likely to succeed in the moment, are not.
That narrow window where speech crosses from idea to action has guided every incitement case since. It recognizes that democracy needs breathing space for rhetoric that is heated, provocative, even reckless. The First Amendment protects not only calm deliberation but the passions that fuel political movements. Still, the line is fragile. The Court would spend the next decade clarifying how close to the edge a speaker may go before protection ends.
Three years after Brandenburg, the Court faced Hess v. Indiana (1973), a protest case born out of the Vietnam era. A college demonstrator shouted during a tense confrontation with police, “We’ll take the f***ing street later!” He was convicted of disorderly conduct for inciting a riot. The Supreme Court reversed, holding that Hess’s words were vague, future-oriented, and shouted in frustration, and therefore did not meet the Brandenburg threshold. The Court reasoned that “later” was not “imminent”; the statement expressed defiance, not direction. It was precisely the kind of political hyperbole that the First Amendment shelters, even when it offends or alarms.
Hess reaffirmed the constitutional distinction between advocacy and incitement, but it also captured something subtler: the recognition that political language often operates in the register of emotion rather than instruction. Democracies must tolerate the anger that accompanies protest, or risk flattening civic life into silence. To punish a speaker for saying “we’ll take the street later” would be to punish a mood, not a threat.
That insight deepened a decade later in NAACP v. Claiborne Hardware Co. (1982), one of the most important free-speech and civil-rights decisions of the twentieth century. In the 1960s, civil rights activists in Mississippi organized a boycott of white-owned stores. At mass meetings, local NAACP leader Charles Evers gave fiery speeches warning that those who broke the boycott would be “disciplined.” When some boycotters later engaged in violence and intimidation, white merchants sued the NAACP for damages, arguing that Evers’s words had incited the attacks. The Court disagreed. It held that Evers’s passionate, even menacing rhetoric was still protected political expression. Unless a speaker directly incites imminent violence, the First Amendment does not permit liability for the independent acts of listeners.
Together, Brandenburg, Hess, and Claiborne form a moral arc of restraint. They teach that democracy depends on tolerating speech that tests our patience and our nerves. The Constitution does not demand civility; it demands the willingness to allow fierce words in the hope that they will yield peaceful change.
The enduring lesson is that incitement law is less about danger than about trust. The state must trust citizens to hear ugly ideas without collapsing into violence, and citizens must trust that their government will not mistake dissent for disloyalty. From the Klan rally to the campus protest to the civil rights boycott, the Court’s message is the same: free societies draw their strength not from suppressing passion, but from enduring it.
Reading Brandenberg served as a test of my own biases, and while I ultimately believe the Brandenburg decision was correct, I want to be mad about it if only because the guy was a KKK leader. That being said, I do agree that we need room for heated, ugly rhetoric, or demonstrators would get locked up for their passionate hyperboles regularly.
The term “later” in Hess really was the Courts whole schtick; obviously an action is not imminent if you are scheduling your mayhem for a later time. I feel like it was huge for the Court give merit to the context in this case because protests (and the words that come with them) tend to be fueled by emotion, not the desire to pencil in some casual rioting, and a lot of that emotion comes from people's actual lived experience with oppression. The distinction between dissent and disloyalty here is going to stick with me, because dissent is not disloyalty. It is passion for change.
Allowing hateful, negative, and just plain bad speech to be protected is far less dangerous than letting the government decide which expressions/emotions are too ‘threatening’ to allow. This serves as a good reminder for me to work on my own patience and remember that (reluctantly) tolerating certain speech, is not the same as agreeing with it.
I wholeheartedly agree with the Brandenburg decision. I am curious about how the internet can change the equation though. Part of me thinks that maybe the speech in question should require a present and capable audience to meet the standard, because instinctively I feel like most people would not be willing to commit violence in furtherance of some radical speech by themselves. But I can see the opposite as well, maybe its easier to let go of non-violent inhibitions if you are isolated by yourself reading or watching someone advocate for violence online.