What Is Incitement to Violence under the First Amendment?

With the Riots in DC, we thought it was a good time to understand the law on INCITEMENT TO VIOLENCE. What is the legal definition and when does free speech border into criminal incitement? We asked the longtime civil rights attorney Lee Rowland (of the ACLU & New York Civil Liberties Union) to explain the basics tenets of the law... #legalexplainer #incitement
► www.talksonlaw.com for more legal explainers and interviews with the titans of law.
► Facebook: / talksonlaw
► Instagram: / talksonlaw
► Twitter: / talksonlaw
► TalksOnLaw does not provide legal advice. Learn more here: www.talksonlaw.com/briefs#abo...
____________________
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 Roland. 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 U.S. 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 in less 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.
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 Ever’s 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 road map for violence against others, it cannot be criminalized consistent with our First Amendment.
[Redacted due to KZbin description constraints]
0:00 What is Incitement to Violence?
0:43 Incitement to Violence v. First Amendment Free Speech
1:35 Incitement under Brandenburg v. Ohio
3:14 Incitement under NAACP v. Claiborne Hardware

[@brendancrowe6993]

I used this in class. It's short and clear. Unfortunately, it was not the Brandenburg test that was being discussed in impeachment arguments yesterday. It was Schenck v. U.S.'s clear and present danger test.

[@Talksonlaw]

Expert Update: Lee Rowland is now the Policy Director of the New York Civil Liberties Union. At the time of taping, she was working with the National ACLU.

[@llllllblodllllll]

Please excuse my ignorance. If in the latter example, the boycott was broken, along with the necks of those who broke it. He is provably not involved in the act. Does his speech then become insightment to violence, when it wasn't before?

[@johnabbottphotography]

It will be interesting to watch Democrats argue that this test shouldn't be used, and that the SC wasn't aware of what they were doing at the time, and/or couldn't have known that Trump would use the word "fight" in a speech, where he also told people that they were going to march peacefully and patriotically.

[@esplanade92]

What is with the background music lmao ? So pointless and irritating.

[@rookforce1]

So there it is. TRUMP beats the rap and will be back in 2024...

[@elijahgutierrez175]

So trump ain’t getting arrested

[@adriguns1017]

Yea definitely not

[@Talksonlaw]

Probably not for incitement. I'm just a moderator (and don't speak for TalksOnLaw or Lee Rowland), but based on Lee's explanation, that's my take too. The law is pretty strict so he would have needed to explicitly encourage the violence to be successfully charged with incitement.

[@adriguns1017]

@@guesswhomartin9249 well people have been saying he incited the riot & I kept looking for footage (there is none) so I thought maybe inciting isn’t what I thought it was but turns out it is. So yea he’s done nothing wrong

[@adriguns1017]

@@guesswhomartin9249 yea I mean I looked at the transcript of the save America rally & at one point he specifically says they’re going to March to the capitol to peacefully & patriotically protest

[@auntlynnie]

@@guesswhomartin9249 I don’t think Trump is embarrassed at all. Seeing a few thousand people take action on his behalf is a narcissist’s dream.

[@kamibrown479]

Incitefull

[@Talksonlaw]

Haha nice.