Mill, Holmes, Brandeis, and a True Threat to Brandenburg
26 Brigham Young University Journal of Public Law 37-72 (2011)
Posted: 5 May 2012
Date Written: 2011
Abstract
John Stuart Mill argues for robust protection of free speech, and some of the essential elements of that position reflect the protections advocated by Justices Holmes and Brandeis that were eventually incorporated in Brandenburg. However, Brandenburg protections have not been analyzed in light of the developing true threats jurisprudence, most recently described and employed in Virginia v. Black. After analyzing the positions of Mill, Holmes, and Brandeis and discussing true threats jurisprudence, this article concludes that unless the Court explains how to differentiate between advocacy and true threats and, further, identifies the extent to which the Constitution protects advocacy that might also be considered a true threat, First Amendment jurisprudence will become even more confusing and Brandenburg protections will simply disappear in many cases.
Keywords: true threats, Brandenburg, On Liberty, advocacy
JEL Classification: K10
Suggested Citation: Suggested Citation