Talk:Holder v. Humanitarian Law Project

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The Brandenburg Claim[edit]

I have not read the Volokh book cited to support the notion that this case was the first time the Brandenburg test had been passed, but I am highly skeptical that he made such a claim. Two important reasons:

Brandenburg is not cited in the majority opinion.
The only time that it is referenced is in a dissenting opinion, which argues that "No one contends that the plaintiffs' speech to these organizations can be prohibited as incitement under Brandenburg." (In other words, the dissenting opinion is saying that literally no one is arguing that the Brandenburg test is passed.)

I realize secondary sources are preferred, but when a secondary source that is not easily obtainable makes an argument that seems to directly contradict the primary source, I think it presents doubt as to (1) if the secondary source has been accurately described, and (2) whether such a claim should be placed in the lead (or whether, assuming the secondary source description is accurate, Volokh's interpretation should be mentioned in some sort of "reaction" section), --2604:2000:14C5:8A67:4817:96CF:3760:FC9E (talk) 18:30, 20 September 2019 (UTC)[reply]