Capitol Insurrection

Will Brandenburg Provide Protection for Donald Trump in the Second Impeachment Trial?

By John Cary Sims

Those preparing bar examination questions, and law school professors writing questions for their students in Constitutional Law or First Amendment Law, often create a fictional scene in which a speaker exhorts (or perhaps berates) a described group of listeners who are gathered in a certain place under stated circumstances.

While sometimes contrived, these scenarios are fun to write, and they have the additional potential merit of giving students the opportunity to apply the well-known, multi-part Brandenburg test in a fact-specific context that may ease the grader’s pain when confronting dozens of answers to the same question. Somewhat unexpectedly, the Members of the United States Senate have recently been given this question, which, most regrettably, is not at all hypothetical or fictional …


Lead Author

John Cary Sims
John Cary Sims is Professor of Law Emeritus at University of the Pacific, McGeorge School of Law. He is a founding co-editor of the Journal of National Security Law & Policy.
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