Brandenburg v. Ohio

Brandenburg, the Court's first review of a 1960s application of criminal syndication law, resulted in a landmark philosophy succinctly casting doubt on all such laws. To many, the decision reopened the door to the original clear and present danger restrictions. The Brandenburg decision provided First Amendment protection to public discourse important for self-governing societies to legitimately operate.

Some legal scholars acclaimed the Brandenburg test as the foundation for the modern interpretation of free speech. The test allowed for a greater degree of political discussion. People have the right to discuss the possibility of using violence to address social and political ills. Only when their words lead to direct action is the law broken. Later, some claimed the Brandenburg standard was outdated for the new high-speed, global communications era of the late 1980s and 1990s. They asserted speech clearly advocating illegal and murderous violence that reaches mass audiences through the Internet or popular talk-show programs should be held to different standards. Examples used to illustrate which speech should not be constitutionally protected included the posting of bomb-making instructions over the Internet and radio talk-show hosts describing how to kill Federal law enforcement agents wearing protective gear. Critics argued the Brandenburg standard should only be applied to situations involving a limited number of immediate listeners. Odds of violence directly resulting from the speech advocating murderous actions over a mass communications medium was considered significantly greater than with smaller forums. It would take only a few people out of millions of "listeners" to lead to violent acts aimed at killing people. Such speech was considered quite different than calls for civil disobedience by Martin Luther King, Jr. in the 1960s.