Glossary

Brandenburg test

The Supreme Court standard protecting advocacy of illegal action unless it is meant and likely to cause imminent lawless acts.

Also called: imminent lawless action test, Brandenburg v. Ohio

The Brandenburg test comes from Brandenburg v. Ohio (1969), in which the Supreme Court overturned the conviction of a Ku Klux Klan leader under a state law punishing advocacy of violence. The Court held that the government may not forbid advocacy of force or law violation except where the advocacy is "directed to inciting or producing imminent lawless action" and is "likely to incite or produce such action."

That standard has three elements: intent to cause lawless action, imminence and likelihood. It replaced the looser "clear and present danger" approach that earlier decisions had used to uphold prosecutions of dissenters, communists and antiwar speakers. Speech that merely praises or abstractly urges illegality, even hateful or offensive speech, is protected.

The test remains the key rule for debates about political speech, protest rhetoric and online content. In Counterman v. Colorado (2023), the Court applied related reasoning to "true threats," requiring proof that the speaker had some awareness that the words could be seen as threatening. Many conservatives invoke the test when opposing speech codes and calling for broad protection; others point to it when discussing political violence. See also prior restraint and viewpoint discrimination.

Last reviewed November 8, 2026

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Related terms

Prior restraint Government action that blocks speech or publication before it occurs, treated by courts as the most disfavored form of censorship. Viewpoint discrimination Government regulation of speech that targets the perspective expressed, treated as an especially serious First Amendment violation. Compelled speech The First Amendment principle that the government generally cannot force people to express messages they disagree with. Public forum doctrine The First Amendment framework that sets how much government may limit speech on public streets, parks and other government property.