In a post-September 11, 2001 America and in light of the very real threat posed by radical Islamic terrorist, the courts must rethink the line between protected speech and incitement to violence. The Brandenburg test, which was previously understood to be the modern test to distinguish protected from unprotected advocacy, should be questioned. By examining the development of the Court's First Amendment doctrine leading up to Brandenburg v. Ohio (1969), I establish that Brandenburg is ill fitted to be applied to advocacy of terrorism. In Brandenburg, the Court actually conflated two previously distinct speech tests-Judge Learned Hand's incitement test and Justice Oliver Wendell Holmes' clear and present danger test-without explaining how these two tests fit together. In addition, the Court founded Brandenburg on sandy soil. The Court failed to distinguish between the two traditions. They cited Hand's incitement tradition as precedent for the clear and present danger test. In doing so, they credited Brandenburg's imminence requirement to Hand's direct incitement tradition, which did not include an imminence requirement. Therefore, Brandenburg should be abandoned. I conclude that the courts should apply the clear and present danger test and the direct incitement test separately according to the particular circumstances of each case. I will give two modern examples of advocacy of terrorism. I will show how the courts would be better off applying the clear and present danger test as developed by Holmes and Brandeis in one case and the direct incitement test as developed in by Judge Hand in the other. By taking a two test approach to advocacy of terrorism, the government will better posses the tools it needs to protect national security.
| Identifer | oai:union.ndltd.org:LSU/oai:etd.lsu.edu:etd-07122007-160505 |
| Date | 16 July 2007 |
| Creators | Best, James Connor |
| Contributors | Emily Erickson, Kirby Goidel, James Stoner |
| Publisher | LSU |
| Source Sets | Louisiana State University |
| Language | English |
| Detected Language | English |
| Type | text |
| Format | application/pdf |
| Source | http://etd.lsu.edu/docs/available/etd-07122007-160505/ |
| Rights | unrestricted, I hereby certify that, if appropriate, I have obtained and attached herein a written permission statement from the owner(s) of each third party copyrighted matter to be included in my thesis, dissertation, or project report, allowing distribution as specified below. I certify that the version I submitted is the same as that approved by my advisory committee. I hereby grant to LSU or its agents the non-exclusive license to archive and make accessible, under the conditions specified below and in appropriate University policies, my thesis, dissertation, or project report in whole or in part in all forms of media, now or hereafter known. I retain all other ownership rights to the copyright of the thesis, dissertation or project report. I also retain the right to use in future works (such as articles or books) all or part of this thesis, dissertation, or project report. |
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