Notes on the ‘Inciting Violence’ Exception to the First Amendment

Notes on the ‘Inciting Violence’ Exception to the First Amendment December 1, 2015

ConstitutionIn the wake of the terrorist attack on a Planned Parenthood in Colorado Springs, I’ve seen a lot of people demand that various anti-abortion zealots be criminally charged with inciting violence, conspiracy or being an accessory before the fact. This post will explain why such charges are incredibly unlikely and would be nearly impossible to make stick if a prosecutor did bring them.

The controlling precedent on this question is a case called Brandenburg v Ohio (1969). Clarence Brandenburg was a KKK leader who gave a speech much like the speech being looked at here. Like the anti-abortion leaders and preachers, Brandenburg did not directly advocate violence. In his speech at a KKK rally, which was filmed, he said:

“This is an organizers’ meeting. We have had quite a few members here today which are – we have hundreds, hundreds of members throughout the State of Ohio. I can quote from a newspaper clipping from the Columbus, Ohio Dispatch, five weeks ago Sunday morning. The Klan has more members in the State of Ohio than does any other organization. We’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.

“We are marching on Congress July the Fourth, four hundred thousand strong. From there we are dividing into two groups, one group to march on St. Augustine, Florida, the other group to march into Mississippi. Thank you.”

This case produced what is known as the Brandenburg test. Like the Lemon test, it is three-pronged: intent, imminence, and likelihood. It’s the imminence standard that is the key to understanding the test. It requires that the speech be “directed to inciting or producing imminent lawless action.” The time element is very important. It is not enough that someone advocate violence in a general sense and then later on someone does commit violence, there has to be a direct nexus between the speech and the act of violence, both in terms of time and in terms of the perpetrator being inspired to commit violence immediately upon hearing the speech.

“Jews must be punished and chased out of American society” is not enough for a conviction for inciting violence.

“Someone should go down to 4th street and send a message to the Jew who owns the bakery there that he is not welcome” might be enough for a conviction if someone listening to the speech follows those instructions and does so in a timely manner.

Since 1969, Brandenburg has been used to overturn convictions in a handful of cases. In Hess v Indiana a few years later, the Supreme Court said that charges against a demonstrator for saying “We’ll take the fucking street later.” As the UKMC law school’s resource on this subject says, the court “concluded that Hess’s statement, taken in context, was not aimed at producing imminent lawless conduct but rather, at the most, lawless conduct at some indefinite future time.”

And another case based on that ruling:

The Court also failed to find the Brandenburg test satisfied in NAACP v Clairborne Hardware (1982). The Court found First Amendment protection for the NAACP’s practice of writing down names of blacks who violated a boycott of certain white businesses, and then reading them aloud at NAACP meetings. The Court also found constitutional protection for the statement, “If we catch any of you going in any of them racist stores, we’re going to break your damn neck.” The Court said the statement fell short of a direct threat or ratification of violence.

If even that statement does not qualify as inciting violence, there’s virtually no way any such charges would stick against these anti-abortion zealots, even with all the lies they tell to get people angry. Are they morally responsible? At least partly, yes. But as a legal matter, it’s hard to imagine a prosecutor bringing charges or any conviction being upheld by the courts. I’m not arguing whether this is the right or wrong standard for inciting violence, or whether that exception should be broadened out. But purely as a matter of legal reality, it just isn’t going to happen.


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