What Is the Direct Incitement Test?
The direct incitement test, also known as the imminent lawless test or Brandenburg test, is a standard that was established in Brandenburg versus Ohio for defining the limits of inflammatory speech that advocates illegal action. Under the direct incitement test, the constitutional right of free speech is no longer protected if the speaker advocates to incite imminent lawless action that is likely to produce such action.
In 1969, Brandenburg versus Ohio became a landmark U.S. Supreme Court case that reversed Brandenburg’s conviction by the Court of Common Pleas, Hamilton County, Ohio. Brandenburg, a leader of the Ku Klux Klan, made a speech at a rally that took place in rural Ohio. He was later charged with violating Ohio’s criminal syndicalism law by participating in the rally and for the speech he made. After conviction, Brandenburg made appeals to the Ohio First District Court of Appeals and the Supreme Court of Ohio claiming his First Amendment right was violated. Both appeals were dismissed. However, the U.S. Supreme Court reversed Brandenburg’s conviction on the grounds that the Ohio law had violated his right to free speech. The criminal syndicalism law made it illegal to advocate violence without taking into consideration if the advocacy would actually incite imminent lawless action.