At least by the early nineties, Brandenburg was the last case in the Court's decades-long quest for a proper definition of free speech where such speech advocates illegal acts. The case was decided per curiam, or without the formality of lengthy written opinions.

At issue was one Brandenburg, who was televised advocating racial strife at a Ku Klux Klan rally in Ohio. The syndicalism statute under which Brandenburg was charged by the state was almost identical to a California statue upheld by the Court in Whitney v. California in 1927, but this time the Court decided to craft a much tougher test.

Since the Whitney decision, the determination as to whether speech was punishable for advocating illegal acts lay in whether it carried a tendency to incite illegal activity, or was part and parcel of an inherently dangerous organization, such as the Communist Party. In the present case, however, the bar was raised to the requirement that "such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." As such, Whitney was overturned.

The Brandenburg tests tend to be more objective than the earlier measures, and attempt to more clearly separate speech from action. This was a very comfortable fit for the tumultuous sixties, but shines a light of hypocrisy on today's world of "code" word paranoia and the gratuitously drawn constraints of political correctness.