Brandenburg and Williams

[Volokh, Eugene]

Here, by the way, is the not very enlightening discussion of Brandenburg in 
Williams:

"To be sure, there remains an important distinction between a proposal to 
engage in illegal activity and the abstract advocacy of illegality. See 
Brandenburg v. Ohio. The Act before us does not prohibit advocacy of child 
pornography, but only offers to provide or requests to obtain it. There is no 
doubt that this prohibition falls well within constitutional bounds....

"The Eleventh Circuit held that under Brandenburg, the "non-commercial, 
non-inciteful promotion of illegal child pornography" is protected, and § 
2252A(a)(3)(B) therefore overreaches by criminalizing the promotion of child 
pornography. As we have discussed earlier, however, the term "promotes" does 
not refer to abstract advocacy, such as the statement "I believe that child 
pornography should be legal" or even "I encourage you to obtain child 
pornography." It refers to the recommendation of a particular piece of 
purported child pornography with the intent of initiating a transfer...."

               So "abstract advocacy of illegality" remains protected.  
Presumably advocacy can be abstract and still be an attempt to urge others to 
engage in the illegal conduct (hence the "I encourage you to obtain child 
pornography" example).  The line is drawn somewhere between "abstract advocacy" 
and a "proposal to engage" (such as "the recommendation of a particular piece 
of purported child pornography with the intent of initiating a transfer").  But 
where exactly?

               Eugene

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