Brandenburg test and First Amendment speech restrictions

Free Speech

Clarence Brandenburg, standing with a burning cross in the background, stated at a public rally that "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 revengeance taken." ("Brandenburg v Ohio") This statement led to the creation of the Brandenburg Test, a legal test to decide whether or not specific speech was guaranteed protection under the Constitution. The Court ultimately decided that in order for the government to prohibit speech, that speech must intend to incite imminent action, use words that could produce imminent action, and openly urge incitement. In other words, the speech must intent, and produce, immediate illegal action.

This is a good standard for the protection of speech because it prohibits any speech which would start violent or illegal action, while still maintaining the freedom of speech that Americans hold dear. There is no need to currently add anything to it because when it comes to speech, it is up to the government to prove that speech is dangerous, not that it may become dangerous at some unknown future time. The principle of imminent action is the only thing that justifies restricting freedom of speech; and the freedom of speech is one of the most important aspects of American life.

Part 2

The Supreme Court of the United States has developed a "forum-based" approach to evaluating First Amendment restrictions. This means that the forum were the speech is taking place can be included in deciding whether or not that speech is protected under the U.S. Constitution. Certain places are provided with more protections in regards to people exercising their First Amendment rights. The court has recognized three forums of public expression: traditional public forums, limited public forums, and nonpublic forums. Traditional public forums include parks, streets, and sidewalks while limited public forums include courthouses, capital grounds, public universities, and other government owned properties traditionally used for the public. As expected, non-public forums include private property and public property not traditionally associated with public expression like airports, prisons, military instillations, etc..