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  • Reverend James Squire

Brandenburg Test

Updated: Jan 31, 2021

The Brandenburg Test is a political ethical occurrence that is not known to many as it occurred in 1969. It relates to free speech. Like many ethical issues it placed future legal cases in a gray area where a good bit of ethics finds itself. Most of us are clear about right and wrong. Those categories are certainly central to ethical thinking, but ethics also finds itself frequently in areas that are not black and white but gray. The Brandenburg Test as a legal precedent is one of those. It attempts to interpret what speech is OK and what speech incites others to commit crimes. It took the place of the "clear and present danger " test established in the 1919 Supreme Court Case Schenck v. United States

We need to keep in mind the Brandenburg Test as we move to step 2 of the Impeachment process for the test contains the same issue that now confronts Trump. Trump will be seeking a way that makes uncertain if his actions actually incited the insurrection on the Capitol.

Let’s look at the context for the Brandenburg Test. In this case, Clarence Brandenburg, a rural leader in Ohio of the KKK, was appealing a $1000 fine and prison sentence. He was charged with advocating violence to achieve a political goal. He was also charged with ASSEMBLING a group of people to perform violence. He complained to TV cameras and press that the white race was being suppressed. He was not armed, but his fellow Klansmen were. His words used the N word to describe black people who he said should return to Africa.

The Supreme Court voted in favor of Brandenburg because his words did not cause IMMINENT action against the group of people who would attend an Independence Day March in Washington, DC. In spite of the vile language that he spoke, this case is often referred to as “an unfortunate price of freedom”.

The gray ethical area of the Brandenburg Test rests on two words which I have highlighted, assembling and imminent.

One has to show that a person brought the crowd together and that his or her words were the direct cause of criminal consequences. Regarding the insurrection at the capitol, look for people to question what Trump was bringing the people together to do. Second, is what he said a direct, imminent effect on creating the ensuing violence?

I already heard Donald Trump Jr, not a paragon of ethical information or action, question the direct connection between his father’s words and what followed. Someone must have told him about the Brandenburg Test. I can’t believe he learned it in an Ethics class. It must have been a “Loophole 101 seminar”.

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