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The U.S. Supreme Court reversed Brandenburg's conviction, holding that government cannot constitutionally punish abstract advocacy of force or law violation
Brandenburg was an individual private citizen advocating "abstractly" for violence against black and Jews as a representative of his private organization (the KKK). His speech rights were protected then by the case.
However, we will almost certainly have court cases in the near future that will test the protections of hate speech, which is what we would more readily call Brandenburg's speech today.
POTUS is a public official and in this incident was speaking in his role as a public official with the power to use force, and issuing a concrete threat against a specific target. He is speaking as the government itself because he is invoking the government's powers.
It's not at all clear that Brandenburg v Ohio protects this sort of speech. There is plenty for the courts to still consider.
> POTUS is a public official and in this incident was speaking in his role as a public official with the power to use force, and a concrete threat against a concrete target.
Yes, but that use of force is not lawless. Police use of force against vandalism is currently legal. Calling for that is also legal, because it fails the "lawless" portion of the "imminent lawless action" test.
Similarly, if POTUS calls for war against a specific nation (or group), it is within his rights to do that, no matter how violent or deadly war may be. War isn't a lawless action (for better or for worse). As such, the Commander in Chief declaring the intent to call on the legislature to approve a war is also protected, for the same reason.
> Similarly, if POTUS calls for war against a specific nation (or group), it is within his rights to do that, no matter how violent or deadly war may be.
Calling for war against a foreign adversary, yes. But for violence against domestic protesters - not clear that Brandenburg v Ohio protects that, regardless of whether the violence is lawful, and to what degree it is lawful. The use of violence by public officials is not a blanket right, and courts will likely consider the types of situation where particular levels of violence are legal or not.
Also, there are specific legal prohibitions against using the military against domestic targets, which is one of the things Mattis was so incensed about in the photo op incident. The administration would like to claim they have the option of the Insurrection Act, which will again have to be tested in courts. Calling protests insurrection, even those that commit vandalism, is false on its face.
> The administration would like to claim they have the option of the Insurrection Act, which will again have to be tested in courts. Calling protests insurrection, even those that commit vandalism, is false on its face.
We're not talking about classifying anything as "insurrection" here.
Given the context of the tweet in question, we are strictly talking about vandalism and trespassing, and we're talking about classifying it as "obstruction of the law", which is explicitly carved out in the text of the Insurrection Act. I'm not sure if you can make a strong case that vandalism and trespassing are NOT an obstruction of the law. If a mid-20th century Arkansas school refusing to desegregate can be considered an obstruction of the law, so too can vandalism/trespassing.
The POTUS declaring the intent to call on the legislature to approve the Insurrection Act against those that are objectively obstructing the law is protected by the Constitution, and you'd have to really stretch yourself to suggest that this fails the imminent lawless action test.
And this is also all assuming that POTUS is talking about using the military. He could also be talking about just calling on the police force to just enforce the existing laws. The statement is vague enough that it's legal on its face, but even in the non-charitable interpretation pretty clearly fails the Brandenburg test.
> The U.S. Supreme Court reversed Brandenburg's conviction, holding that government cannot constitutionally punish abstract advocacy of force or law violation
Brandenburg was an individual private citizen advocating "abstractly" for violence against black and Jews as a representative of his private organization (the KKK). His speech rights were protected then by the case.
However, we will almost certainly have court cases in the near future that will test the protections of hate speech, which is what we would more readily call Brandenburg's speech today.
POTUS is a public official and in this incident was speaking in his role as a public official with the power to use force, and issuing a concrete threat against a specific target. He is speaking as the government itself because he is invoking the government's powers.
It's not at all clear that Brandenburg v Ohio protects this sort of speech. There is plenty for the courts to still consider.