Prohibited Speech: What constitutes "INCITEMENT" under the law?

What constitutes "incitement" under the First Amendment? When is speech so violent and dangerous that it can be prohibited by the government? In this special free speech series with the National ACLU, TalksOnLaw explores the limits of speech.
Lee Rowland is a senior staff attorney with the ACLU’s Speech, Privacy, and Technology Project. She has served as lead counsel in numerous federal First Amendment cases.
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TRANSCRIPT
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.

[@shyaminikrishan9227]

This was a very good explanation of a rather confusing and often unclear topic. Well done.

[@Austinfromcorncountry]

This video really deserves more views.

[@Talksonlaw]

Hopefully the KZbin algorithm is listening. 😊 thanks!

[@nemolovesy0u]

This was explained so well. Thank you!

[@Talksonlaw]

nemolovesyou thanks!

[@nailsaggitarius4212]

Thank you very much. This is all I needed to learn about 1st Amendment! Just beautiful!!!

[@Talksonlaw]

Nail Saggitarius thanks much Nail!!

[@garynaccarto8636]

Even though I am not lawyer I find law quite an interesting subject.

[@Talksonlaw]

Gary Naccarto thanks for the comment! Yeah and it affects all of us, so why should lawyers be the only ones with understanding.. 🙂

[@rancosteel]

The First Amendment does mention the word incite. All speech is free. That is what James Madison meant when he authored it. It was meant to protect speech that you would disagree with.

[@mramandaful]

This breaks it down so clearly. 🙌

[@Talksonlaw]

Amanda Lavin love the support, Amanda!

[@ajwysopal]

Are we aloud to share this video with others? With like a link back your website or something? I want to share this

[@elinope4745]

The problem is that what is "inciting" is very subjective. What incites one person won't incite another, another thing might do the opposite and incite the one who was previously not incited, while the other is not incited by it. Different people have different opinions. There is no objective way to measure subjective qualities without adding subjective goals or opinions into the mix. Incitement is fundamentally a subjective thing, and will be different from person to person. I think a lot of this stuff is done on double thinking lines. They want to protect some minorities but not others. Learn to live and let live, otherwise this type of stuff pops up. The solution to hateful speech is peaceful speech, sit down and talk to people whom disagree with you, you don't have to agree with what they are saying, just demonstrate that you actually understand their opinion and position and then communicate your own. Try to find middle ground rather than forcing compliance. If you don't have to find middle ground, then they don't either.

[@gospelbritishisles5531]

very clear, well explained and on point. Thank you

[@Talksonlaw]

Love to hear it! Let us know if there are other topics of law you’d like to hear about.

[@marko11kram]

Well explained, thank you

[@belle208]

This is so helpful! Thank you for explaining it very well.

[@Talksonlaw]

Thanks Belle!

[@ThinkerOnTheBus]

Perhaps it is nearly impossible to do so, but by utilizing a broad, undefined term like "road map", the question regarding what constitutes "INCITEMENT" by legal definition has yet to be answered.

[@joelaldenschlosser8814]

Very helpful---are there more videos like this?

[@Talksonlaw]

Joel Alden Schlosser more coming soon!

[@Talksonlaw]

Subscribe to our channel or visit www.talksonlaw.com! :)

[@internetdoggo4839]

Very good explanation!

[@Talksonlaw]

Thanks for the support!

[@chriscockrell9495]

the Brandenburg Test and NAACP v. Claiborne. This channel is great. Does the series discuss slander and defamation with free speech? And other exceptions to free speech?

[@Talksonlaw]

Love the comment Chris! We discuss these topics in some of our longer interviews on our website but I don't think we discuss slander (YET!) on our youtube channel. Here's an interview with one of the nation's top experts on freedom of the press discussing topics related to slander and defamation in case you're interested. www.talksonlaw.com/talks/press-freedom-vs-privacy-newsworthiness-in-a-self-publishing-era

[@chriscockrell9495]

@@Talksonlaw Wow. That link is a treasure. I'm an engineer and I like physical systems, but I've been reviewing and studying legal and political systems for the last few years and find it interesting how we get to create the rules for those man made systems. I find it interesting how we think we understand our self made systems that we've created and follow, yet we (the average person not schooled in law or government) typically have no clue on details. Bummed that video isn't on youtube. I typically post my notes on youtube so I can pull up (search) information I've previously reviewed. And link other people to the material.

[@imonlyamanandiwilldiesomed4406]

Could you please further elaborate "Immediate and specific roadmap for violence against others"?

[@Talksonlaw]

Any First Amendment scholars out there willing to weigh in? As to the basics, we can share that this is sometimes called the "imminent lawless action" test and it requires that the speaker has an intent to provoke violence that is both "imminent" and "likely."

[@imonlyamanandiwilldiesomed4406]

@@Talksonlaw Why would you create a video on incitement if you're unable to give the legal definition?

[@ufodeath]

@@Talksonlaw I personally think the "imminent" side of it makes the bar too high, it should just be "likely" with intent to motivate acts of violence. Publicly fantasizing about killing a bunch of black people may not imminently lead to hate crimes, but it encourages it nonetheless. The reason why this is so is because it meant to create hatred towards a specific group of people in order to motive future actions of violence. This is different from Charles Evers who was not attempting to create hatred onto a specific group of people in order to motivate future violence, it was highly situational in the context of remnants of segregation and discrimination. So the difference here could be clearly defined on legal grounds: one incites hatred to motivate future violence, while the other is not inciting hatred. The former can be proven to motivate future behavior against a broad group of people, while the later doesn't do that and is instead a rhetorical reaction to hate, discrimination and wrong-doings still present. So the context of the rhetoric matters (is it a rhetorical reaction to wrong-doing or not?), and the intent to motive a group of people for future acts of violence onto a broad group of people matters. This can be used to create a much better legal basis and draw a much more clear legal line that before. Why is this relevant? Well the law clearly doesn't work, especially when fascist can get away with creating messages that they know will create hatred and motive other people to gun down people in black churches, synagogues, and so on. If the law cannot handle speech that provably motivates lethal violence, even if it's not immediately imminent in the context of the speech, then that's a problem.

[@ThinkerOnTheBus]

This appears to wallow in ambiguity akin to the mythical hate speech and her partner, bias crime!

[@ufodeath]

​@@ThinkerOnTheBus If someone is in a position of public responsibility that can influence the actions of a substantial group of people, Because believe it or not, group think - to varying degrees - is a part of the human condition and difficult for most humans to break free from, then to seriously idolize about committing atrocities inevitably leads to atrocities. To ignore this under the law, is to ignore how reality itself works and to allow loop holes which has proven to always lead to acts of extreme violence towards scapegoated or marginalized groups. People saying shitty racist things or jokes in private is not what's on the table here. We are talking about people who use public speech as an opportunity to motivate violence against marginalized groups, even if they don't directly participate in the planning of any violence.

[@nailsaggitarius4212]

Good one. Thank you. What if a person tells a lie but he does not know about that it is a lie?

[@ammaribrahim5756]

What is difference between exposing govs and this?

[@user-um2uf9zq4c]

Right, so what Trump did was not incitement to violence. Incitement to insurrection "doesn’t need to meet any test." and is therefore essentially meaningless. Thank you. Edited to reflect reply.

[@Talksonlaw]

We did a post to try and explain the difference between incitement of violence and “incitement of insurrection.” www.talksonlaw.com/blog/donald-trump-incitement-of-insurrection

[@user-um2uf9zq4c]

" For the purposes of impeachment, the high crime or misdemeanor, doesn’t need to meet any test. The case for incitement of insurrection simply needed to convince the majority of the House to impeach" Wow... so it's a meaningless term that could be applied to any president at any time based on a majority vote. That's ridiculous. Thanks for the explanation.

[@ajwysopal]

@@user-um2uf9zq4c yeah Trump didn't incite anything. But left will try to spin words and twist narratives to fit what they want

[@BadEconomyOfficial]

Right, I am the victim of incitement, speech that are fighting words would be to provoke an illegal response: A good example of this would be, someone yells an insult at someone’s protected class repeatedly and the other person responds violently. The defendant who responded violently would have a case of provocation and claim insanity plea because he lost self control.

[@ajwysopal]

No

[@dr.challis808]

That's not complete free speech because sometimes violence needs to be incited if violence is being done to innocent people through the system

[@sbespn3820]

I disagree with the supreme court then.

[@Talksonlaw]

SB ESPN in what way?