Free Speech and the Confluence of National Security and Internet Exceptionalism

By Alan K. Chen
October 31, 2017

In this Article, I argue that, notwithstanding these contemporary developments, the Court got it mostly right in Brandenburg. Or, I want to at least suggest that it is premature to reconstruct the Brandenburg test to address perceived changes in our global environment. For the most part, Brandenburg has succeeded in mediating the balance between protecting political or ideological advocacy and enabling the government to regulate actual incitement, even in the contemporary era. Moreover, I argue that society should be especially wary of calls to narrow Brandenburg’s speech-protective standard because such changes might be significantly influenced by the confluence of two forms of exceptionalism—national security exceptionalism and internet exceptionalism—both of which are continuing to evolve in real time.

In development of this argument, this Article contains three parts. Part I discusses how the law of incitement is situated in the evolution of modern free speech doctrine. Next, Part II identifies and explains how national security exceptionalism and internet exceptionalism may work together to influence the relaxation of the Brandenburg test. Finally, Part III argues that there is insufficient evidence at this point to suggest a strong need to recalibrate the Brandenburg test.