Free speech: what constitutes "incitement?"

Lee Rowland: We all know the First Amendment protects almost all speech. But when does speech cross the line into something that’s unprotected, like incitement to violence?

My name is Lee Rowland. I’m a free speech attorney with the National ACLU, and we’re going to talk about the law of incitement.

The First Amendment to the US constitution by default protects almost every bit of speech that we can engage in, but there are a few areas where speech crosses the line into something that’s considered violent or criminal. One of those areas is incitement. “Incitement to violence” is a term that refers to speech that creates an immediate risk of harm to another person. It’s kind of like a threat, except it’s done through another person. Which is to say, rather than threaten you directly with harm, I suggest to another person, “Why don’t you hurt her?” Under the First Amendment, it’s an extremely high bar before speech can be criminalized as incitement. But unless and until there is an immediate and serious risk to a specific identifiable person, that speech can’t be made criminal consistent with our First Amendment.

A tour of the Supreme Court’s history with incitement law provides a beautiful illustration of what we mean when we say that the First Amendment is indivisible. It applies equally to, say, a white supremacist and a racial justice advocate. I want to talk about two cases that have hit the Supreme Court just to illustrate the breadth of speech that is covered by the First Amendment. The seminal case in which the Supreme Court set this incredibly high bar for what speech becomes and can constitute incitement is called Brandenburg. And even until today, lawyers often refer to the incitement doctrine as the “Brandenburg Test.” Brandenburg was a man who was a literal leader of the KKK, and at a Klan rally, he expressed the kind of hateful and disgusting racism you would expect from a Klan leader. And as part of his speech, he basically fantasized and encouraged generalized violence against black Americans. He was charged with incitement, and his case made it all the way up to the Supreme Court. And the Supreme Court determined that Mr. Brandenburg had not committed incitement, because there was no particular individual he was suggesting be harmed, he didn’t create a plan of action for hurting anyone, he spoke in general and vague terms about an all-white future. He also said unbelievably hateful and disgusting things about black people as you might expect from a leader of the KKK. But at no point, the Supreme Court ruled, did his speech, did his words become an immediate roadmap for violence against other people. Brandenburg might be tough to swallow in a vacuum. A nearly all-white Supreme Court saying a KKK leader, of course his speech is protected under the First Amendment. But if you just wait a handful of years, we really get the end of the story of incitement in the next major case, NAACP v. Claiborne Hardware. Even from the title you probably suspect this is going to be an interesting counterpoint to the Brandenburg case. In NAACP v. Claiborne, a bunch of white-owned businesses had filed lawsuits against a lion of the civil rights movement named Charles Evers who, at a rally organized by the NAACP, engaged in really powerful rhetoric encouraging people to boycott racist, whites-only businesses. And he said during his speech, “If anybody breaks this boycott, I’ll break your neck.” Now, potential for future violence? Absolutely. Vulgar? Yes. The question is is it protected speech? It went again up to the Supreme Court. The Supreme Court looks to Brandenburg and says, we’ve set this incitement bar really high. So high that it protects a KKK leader at a rally suggesting that black people should be killed. Now we’ve got a civil rights leader at a rally suggesting that at some point, some people’s necks might be wrung. Well, guess what? Charles Evers' words were protected specifically because the Supreme Court ruled that he fell under the Brandenburg test. The Supreme Court recognizes, rightfully, that political speech often involves really passionate, sometimes violent rhetoric. And unless and until it creates a specific and immediate roadmap to violence against others, it cannot be criminalized consistent with our First Amendment.

 My name is Lee Rowland, and you’re watching TalksOnLaw.