How did Brandenburg v. Ohio limit the government’s power to punish incitement?

In Brandenburg v. Ohio (1969), the U.S. Supreme Court significantly narrowed the government’s power to punish speech that advocates for illegal acts. The Court established that the government may only prohibit "incitement" if the speech is both "directed at inciting or producing imminent lawless action" and "likely to incite or produce such action."1

This ruling effectively replaced earlier, more restrictive standards—such as the "bad tendency" test used in Gitlow v. New York—which had allowed the state to suppress speech that merely advocated for potential violence at an indefinite future time. By requiring that the threat of lawless action be both intended and imminent, Brandenburg provides robust protection for political speech, ensuring that expression cannot be punished simply because it is controversial or advocates for radical change. Under this standard, speech urging action at some unspecified future time is constitutionally protected.21