Free Speech and the Confluence of National Security and Internet Exceptionalism

In this Article, I argue that, notwithstanding these contemporary developments, the Court got it mostly right in Brandenburg. Or, I want to at least suggest that it is premature to reconstruct the Brandenburg test to address perceived changes in our global environment. For the most part, Brandenburg has succeeded in mediating the balance between protecting political or ideological advocacy and enabling the government to regulate actual incitement, even in the contemporary era. Moreover, I argue that society should be especially wary of calls to narrow Brandenburg’s speech-protective standard because such changes might be significantly influenced by the confluence of two forms of exceptionalism—national security exceptionalism and internet exceptionalism—both of which are continuing to evolve in real time.

In development of this argument, this Article contains three parts.