Brandenburg and Terrorism in the Digital Age

This essay explores the tension between the longstanding Brandenburg standard and the current technological context—one in which abstract advocacy of terrorist conduct, widely and cheaply disseminated through the internet and channeled through social media, has contributed to a number of devastating attacks such as the Orlando nightclub shooting, the Boston marathon bombings, and the shootings in San Bernardino. It does so through the lens of the Supreme Court’s recent decision in Carpenter v. United States—a Fourth Amendment case that similarly dealt with the collision between the longstanding constitutional righThis essay explores the tension between the longstanding Brandenburg standard and the current technological context—one in which abstract advocacy of terrorist conduct, widely and cheaply disseminated through the internet and channeled through social media, has contributed to a number of devastating attacks such as the Orlando nightclub shooting, the Boston marathon bombings, and the shootings in San Bernardino. It does so through the lens of the Supreme Court’s recent decision in Carpenter v. United States—a Fourth Amendment case that similarly dealt with the collision between longstanding constitutional rights doctrine and significant technological change. A close examination of Carpenter helps to frame the central theoretical debate underlying Brandenburg’s continued viability, and it illuminates the normative and empirical pivot points around which the debate reststs doctrine and significant technological change.

A close examination of Carpenter helps to frame the central theoretical debate underlying Brandenburg’s continued viability, and it illuminates the normative and empirical pivot points around which the debate rests.