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Trump speech fails the Brandenburg test, just like the KKK did in 1969


There seems to be some confusion about how the First Amendment works and where it applies. The First Amendment does not apply to publicly traded companies. 

Public Traded Stock: a corporation whose ownership is distributed amongst general public shareholders through publicly-traded stock shares.

You have to buy the stock. It’s not public.

You can de-platform a person that is using your corporation’s social media platform, but let us pretend we don’t get that Twitter is a publicly-traded company, so freedom of speech does apply to them (DOES NOT apply to them), but since that’s the new cool dance of the willfully ill-informed.

What is the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The part that Trump and his ignorant followers are screaming about is “freedom of speech” —which protects you from the government punishing or censoring or oppressing your speech. 

Which doesn’t apply to private organizations.

But there is another case the First Amendment does not apply. It is called the Brandenburg test or the imminent lawless action standard. The Brandenburg test was established in  Brandenburg v. Ohio, 395 US 444 (1969), to determine when inflammatory speech intending to advocate illegal action can be restricted. In Brandenburg v. Ohio (1969), a KKK leader gave a speech at a rally to his fellow Klansmen. Here is a portion of the speech that had 12 hooded men, some of whom carried firearms as a backdrop and a wooden cross they later burned:

‘This is an organizers’ meeting. We have had quite a few members here today which are—we have hundreds, hundreds of members throughout the State of Ohio. I can quote from a newspaper clipping from the Columbus, Ohio Dispatch, five weeks ago Sunday morning. The Klan has more members in the State of Ohio than does any other organization. We’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.

We are marching on Congress July the Fourth, four hundred thousand strong. From there we are dividing into two groups, one group to march on St. Augustine, Florida, the other group to march into Mississippi. Thank you.’ [In conclusion] personally, I believe the nigger should be returned to Africa, the Jew returned to Israel.’

Cornell Law school

The test determined that the government may prohibit speech advocating the use of force or crime if the speech satisfies both elements of the two-part test:  

  1. The speech is “directed to inciting or producing imminent lawless action,” AND
  2. The speech is “likely to incite or produce such action.”

Trump’s communication fails the Brandenburg Test. The First Amendment DOES not protect if the speaker intends to incite a violation of the law. He clearly did, so while this does not apply on Twitter, the government has every right and the duty to limit Trump’s speech. He violated the law and incited others to violate the law. 

Trump, with his words, not only committed and encouraged treason and sedition, but also encouraged US GOV §1752: Knowingly and with intent to impede or disrupt the orderly conduct of government business or official functions.

Teka Lo, Public Intellectuals

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