Key Takeaways
- Speech can be punished as incitement only when it is intended to produce imminent lawless action and is likely to do so.
- The test protects speakers across the political spectrum, from a Klan leader in Brandenburg v. Ohio to a civil rights leader in NAACP v. Claiborne Hardware.
- Heated or violent political rhetoric, without a likely and imminent push toward violence, remains protected speech.
The First Amendment protects almost all speech, but when do words cross the line into unprotected incitement to violence? And why does the law set that line so high?
In this TalksOnLaw Brief, Lee Rowland, then a free speech attorney with the national ACLU and now Executive Director of the National Coalition Against Censorship, explains the law of incitement. Rowland walks through two landmark Supreme Court cases to show that the First Amendment’s protection is indivisible: it applies equally to a white supremacist and to a civil rights leader.
A Very High Bar
Rowland explains that incitement is one of the few categories of speech that falls outside First Amendment protection. She compares it to a threat delivered through another person: rather than threatening you directly, a speaker urges someone else to hurt you. The bar for punishing speech as incitement is extremely high. Under the test announced in Brandenburg v. Ohio, the government may punish advocacy of force or lawbreaking only when it is directed to inciting or producing imminent lawless action and is likely to produce such action. Abstract advocacy of violence, however hateful, remains protected.
Brandenburg and the Klan
Clarence Brandenburg was a Ku Klux Klan leader who, at a Klan rally, spoke in vile racist terms and suggested violence against Black Americans in general. He was convicted under Ohio’s criminal syndicalism law, and the Supreme Court reversed. As Rowland explains, he spoke in general, vague terms, laid out no plan of action, and his words never became an immediate roadmap for violence. That is why lawyers still call the incitement doctrine the Brandenburg test.
Claiborne Hardware and the Civil Rights Movement
Rowland then turns to NAACP v. Claiborne Hardware Co., which she calls the end of the story. White-owned businesses in Mississippi sued the NAACP and civil rights leader Charles Evers for damages arising from a boycott of segregated businesses. At a rally, Evers warned that anyone caught breaking the boycott would have their neck broken. Applying Brandenburg, the Supreme Court held that his words were protected. The Court recognized that passionate political speech often includes violent rhetoric, and that unless it creates a specific and immediate path to violence, it cannot be punished, whether through criminal charges or civil liability.
What to Know Now
Brandenburg and Claiborne Hardware remain the governing law, and the Supreme Court has reinforced the intent element. In Counterman v. Colorado, a true-threats case, the Court explained that incitement may be punished only when the speaker intends to produce imminent lawless action, while true threats require at least recklessness about how the words will be understood. The Court’s earlier decision in Hess v. Indiana also confirms that a statement about unlawful action at some indefinite future time is not incitement.
Courts continue to wrestle with how these principles apply to protest leaders and political figures whose crowds turn violent. In Mckesson v. Doe, the Fifth Circuit allowed a negligence claim against a protest organizer to proceed, and in 2024 the Supreme Court declined review, with Justice Sotomayor writing separately to emphasize that the First Amendment limits such liability. The district court then ruled for Mckesson, but in 2026 the Fifth Circuit reversed that ruling and sent the case back for further proceedings. Supporters of broader liability argue that organizers should answer for foreseeable violence, while free speech advocates warn that it would chill the kind of protest Claiborne Hardware protected. Rowland’s central point stands: the incitement exception is narrow by design.
