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The tricky issue of free speech

July 12, 2016

A follower of this blog asked directly what sort of advocacy speech is legally considered as incitement.

A quick disclaimer. I am neither an attorney or a professor of law. The following information is provided for the purposes of discussion only.

The U.S.  Supreme Court, in Brandenburg v. Ohio395 U.S. 444(1969)  has held that for speech to be considered inciting it must contain an element that results in  “imminent lawless action”

Wex offers this explanation of the standard:

Brandenburg test

Standard established in  Brandenburg v. Ohio, 395 US 444 (1969), to determine when inflammatory speech intending to advocate illegal action can be restricted. The standard developed determined that speech advocating the use of force or crime could only be proscribed where two conditions were satisfied: (1) the advocacy is “directed to inciting or producing imminent lawless action,” and (2) the advocacy is also “likely to incite or produce such action.”

Thus, when news clips carried video of New York City protestors chanting “What do we want?  Dead cops. When do we want it ? Now.” on Dec. 13, 2014, it is likely that any action alleging incitement brought against the protestors would have to prove that the killing of two New York police officers on Dec. 21, 2014  was the imminent lawless action and resulted from that speech.

The argument would then seem to be, “how soon does the lawless action have to follow the speech to be considered imminent?”

That’s so far a question which has not made its way to the Court. Congress has not seen fit to wade into the issue either. A petition (undated) was posted on requesting that Congress  consider the issue, but closed when it received only 74 of 1,000 signatures needed.

A similar legal gray area exists in the definition of hate speech. In R.A.V. v. City of St. Paul, (1992) and again in Snyder v. Phelps, 562 U.S. 443 (2011),the Supreme Court seems to have validated the idea that offensive speech is protected under the First Amendment unless it results in imminent violence.

Also worthy of consideration is whether an ongoing campaign of messaging repeatedly targeting an identifiable group, in this case law enforcement personnel, routinely stimulates or could be expected to incite violent acts that result in harm should be federally classified as hate speech.

In short, this is one of those times when if you don’t like the law or the interpretation of it you have to work to change or modify it,  and those changes would have to be able to survive a Supreme Court decision. Given the effect of changing political influences on the supposedly impartial Court, that might be as much a matter of timing as of law.

Nothing however, seems to prevent you from expressing your personal individual displeasure with the anti-cop, anti-authority, pro-anarchy message from the left.

From → op-ed

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