Brandenburg & incitement Government can forbid advocacy of the use of force or of law violation only where such advocacy is (1) directed to inciting/producing imminent lawless action, & (2) likely to incite or produce such action.  Brandenburg’s strict test is designed to protect speaker’s engaging in political advocacy and to protect against  Gov’t retaliation for criticism of gov’t action  Chilling of discussion of ideas/opinions, some of which are hyperbolic and hot-headed  To what extent should that test be applied OUTSIDE of the context of criminal punishment of political activity?  Should media defendants (film, magazine, song, book publishers) be able to raise Brandenburg’s requirements as a defense to civil lawsuits?  What chilling effect does altering the Brandenburg formula in the context have on such defendants?

Brandenburg & “how-to” manuals  Should courts allow Brandenburg to be used as a defense when a publisher – whether media defendant or simply someone who publishes information on a webpage – simply provides information in a “how-to” form rather than in an article format.  Is this more like aiding/abetting or solicitation of a crime than incitement?  Which of Brandenburg’s elements are missing or unmet even in this scenario? Would you change any of Brandenburg’s required elements because the situation has changed?  intent, express advocacy, illegal harm, likely to result, imminently

Holder v. HLP – the statutes 18 USC § 2339B(a) – “Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, [shall be fined or imprisoned up to 15 years.] [A] person must have knowledge that the organization is a designated terrorist organization [or] that the organization has engaged or engages in terrorist activity.” “Material support or resources” = property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (one or more individuals who may be or include oneself), and transportation, except medicine or religious materials (18 USC § 2339A) Training = instruction or teaching designed to impart a specific skill, as opposed to general knowledge Expert Advice or Assistance = advice or assistance derived from scientific, technical or other specialized knowledge

Holder v. HLP – who got it right?  SCT applies strict scrutiny: Statute must be necessary to meet a compelling state interest  Who has the better argument on whether the statute violates the First Amendment -- majority or dissent?

HLP v. Holder: The “coordinated activities” limitation on punishment  SCT: law only allows punishment of expressive activity that is “coordinated” material support (NOT independent advocacy). That’s why it doesn’t violate the 1 st amendment. People are still free to independently advocate.  What is speech “to, under the direction of, or in coordination with” a group?  What if D files an amicus brief on behalf of a designated FTO?  What if D visits Pakistan and Yemen (known FTO sites), maintains a website claiming that the US actions in Mideast are evil, posts translated videos advocating jihad and translations of religious doctrine but never did so with any evidence of direction or payment from an FTO?