The Brandenburg Test

The Free Speech Test That Will Bring Donald Trump Down

Free speech. What is free speech? What is protected free speech under the First Amendment of the United States Constitution? This topic will inevitably come up when the Department of Justice indicts Donald Trump for inciting an insurrection.

The DOJ will have to prove in court that Donald Trump's 'will be wild' tweet & his incitement at the rally speech on January 6th, 2021 were not protected speech under the First Amendment. When the issue comes up, the court will ask the jury to apply a judicial test from Brandenburg v. Ohio (1969). Below is a preview of how that legal analysis is likely to proceed.

Reference: Cornell University’s Legal Information Institute outlines the Brandenburg Test very well. My analysis applies the Brandenburg Test to publicly known facts about Donald Trump’s incitement of insurrection & seditious conspiracy. Please highlight this link ( https://www.law.cornell.edu/wex/brandenburg_test ) & open in a separate page to read up on the test itself for a better understanding of it & its judicial history.