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Ending the Right’s Reign of Stochastic Terror: Replacing Brandenburg to Modernize the First Amendment


Political debate in the United States has entered a dangerous era beyond mere hyper-partisanship. Often, “political commentary” presented by some of the most watched conservative news networks is not political commentary at all, but vilification of political targets. This vilification often results in stochastic terrorism—a phenomenon that occurs when speakers with large audiences engage in frequent rhetorical attacks against political opposition, eventually inciting an ideologically aligned individual to take unpredictable, often violent action. Stochastic terrorism is an expedient form of dealing with political opponents because, due to First Amendment incitement jurisprudence, speakers who say inciteful things remain legally insulated from accountability for the result.

To discourage and stifle the use of stochastic terrorism in political discourse, there must be accountability for demagogues who incite violence against political targets. Impeding the road to accountability is the 1969 Supreme Court case, Brandenburg v. Ohio. This case creates a near absolute barrier to legislation that can limit speech which incites stochastic terrorism. The Supreme Court should strike down the Brandenburg incitement test, allowing it to be replaced with a standard that is less tolerant of inciteful rhetoric. Articles 19 and 20 of the International Covenant on Civil and Political Rights serve as excellent guides for proper treatment and discouragement of inciteful language that the federal government should allow states to implement as they see fit to protect targeted populations. Although it is unlikely that stochastic terrorism will ever be effectively ended, this multi-part solution would significantly decrease its potency and lead to accountability for the reckless use of violent rhetoric.