Isabella Carter
Speech that incites people to break the law or commit acts of violence is not protected by the First Amendment. In Brandenburg v. Ohio (1969), the U.S. Supreme Court ruled that the First Amendment does not protect advocacy of the use of force or law violation if it is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. In other words, speech that is likely to lead to imminent disorder is not protected.
| Characteristics | Values |
|---|---|
| Directed to inciting or producing imminent lawless action | Speech that incites people to break the law, including acts of violence |
| Likely to incite or produce such action | Speech that is likely to cause imminent disorder |
| Directed at a specific person or group | Speech that is intended to produce imminent disorder |
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What You'll Learn
- The First Amendment does not protect speech that incites people to break the law
- Incitement to imminent lawless action is not protected by the First Amendment
- The Supreme Court has clarified that speech advocating illegal action at some indefinite future time is protected by the First Amendment
- The Supreme Court's 1969 decision in Brandenburg v. Ohio
- The 1957 Yates case observed that 'indoctrination of a group in preparation for future violent action' is not protected by the First Amendment
The First Amendment does not protect speech that incites people to break the law
The case of Brandenburg v. Ohio involved members of the Ku Klux Klan who were filmed using slurs against black and Jewish people. The Klansmen stated there "might have to be some revengeance taken" against government officials and announced a march on Congress on the Fourth of July. The Supreme Court ruled that this speech was not protected by the First Amendment because it was likely to incite violence.
In Hess v. Indiana, the Supreme Court further clarified what constitutes unprotected incitement speech. The Court noted that the speech must be directed at a specific person or group and there must be evidence that the speaker's words were intended to produce imminent disorder. This means that general statements about violence or lawbreaking are not enough to constitute unprotected incitement speech. There must be a specific target and a likelihood that the speech will lead to disorder.
The First Amendment to the US Constitution protects almost every bit of speech that we can engage in. However, there are a few areas where speech crosses the line into something that is considered violent or criminal. In these cases, the First Amendment does not offer protection. For example, in Yates, the Court observed that "indoctrination of a group in preparation for future violent action, as well as exhortation to immediate action...is not constitutionally protected when the group is of sufficient size and cohesiveness, is sufficiently oriented towards action, and other circumstances are such as reasonably to justify apprehension that action will occur". This means that speech which encourages a group to take violent action is not protected by the First Amendment if it is likely that the group will act on those encouragements.
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Incitement to imminent lawless action is not protected by the First Amendment
The First Amendment to the US Constitution protects almost every type of speech, but there are exceptions. Speech that incites people to break the law or commit acts of violence is not protected by the First Amendment. This is known as 'incitement to imminent lawless action'.
In Brandenburg v. Ohio (1969), the US Supreme Court ruled that "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action". This means that speech is not protected by the First Amendment if it is specifically directed at inciting people to break the law or commit violence, and if it is likely to actually cause this to happen. The ruling came about following the arrest of Ku Klux Klan members under an Ohio criminal syndicalism law. Journalists had captured footage of the armed Klansmen using slurs against black and Jewish people, stating that there "might have to be some revengeance taken" against government officials, and announcing a march on Congress on the Fourth of July.
In Hess v. Indiana, the Supreme Court further clarified what constitutes unprotected incitement speech. It noted that the speech must be directed at a specific person or group, and there must be evidence that the speaker's words were intended to produce imminent disorder and were likely to do so. In Yates, the Court observed that "indoctrination of a group in preparation for future violent action, as well as exhortation to immediate action, by advocacy found to be directed to 'action for the accomplishment' of forcible overthrow, to violence 'as a rule or principle of action', and employing the 'language of incitement'... is not constitutionally protected when the group is of sufficient size and cohesiveness, is sufficiently oriented towards action, and other circumstances are such as reasonably to justify apprehension that action will occur".
Subsequent Supreme Court cases have also clarified that speech advocating illegal action at some indefinite future time is protected by the First Amendment, as long as it does not constitute criminal conspiracy.
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The Supreme Court has clarified that speech advocating illegal action at some indefinite future time is protected by the First Amendment
Speech that incites people to break the law or commit acts of violence is not protected by the First Amendment. In Brandenburg v. Ohio, the Supreme Court ruled that the First Amendment does not permit a State to forbid or proscribe advocacy of the use of force or of law violation, except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
However, subsequent Supreme Court cases have clarified that speech advocating illegal action at some indefinite future time is protected by the First Amendment, as long as it does not constitute criminal conspiracy. This means that the speech must be directed at a specific person or group, and there must be evidence or a rational inference from the import of the language that the speaker's words were intended to produce, and likely to produce, imminent disorder.
The standard for what constitutes unprotected incitement speech comes from the Supreme Court's 1969 decision in Brandenburg v. Ohio, a First Amendment challenge to the arrest of Ku Klux Klan members under an Ohio criminal syndicalism law. Journalists captured footage of the armed Klansmen using slurs against Black and Jewish people. The Klansmen stated there "might have to be some revengeance taken" against government officials and announced a march on Congress on the Fourth of July.
In Yates, the Supreme Court observed that "indoctrination of a group in preparation for future violent action, as well as exhortation to immediate action, by advocacy found to be directed to 'action for the accomplishment' of forcible overthrow, to violence 'as a rule or principle of action,' and employing the 'language of incitement,' ... is not constitutionally protected when the group is of sufficient size and cohesiveness, is sufficiently oriented towards action, and other circumstances are such as reasonably to justify apprehension that action will occur."
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The Supreme Court's 1969 decision in Brandenburg v. Ohio
Speech that incites people to break the law or commit acts of violence is not protected by the First Amendment. The Supreme Court's 1969 decision in Brandenburg v. Ohio set the standard for what constitutes unprotected incitement speech.
In Brandenburg v. Ohio, the Supreme Court ruled that "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action". This means that the government cannot punish inflammatory speech unless it is likely to lead to imminent lawless action. The Court's decision established a new test for determining when advocacy could be punished: it must be directed at a specific person or group, and there must be evidence that the speaker's words were intended to produce, and likely to produce, imminent disorder.
The case involved a First Amendment challenge to the arrest of Ku Klux Klan members under an Ohio criminal syndicalism law. Journalists had captured footage of armed Klansmen using slurs against Black and Jewish people and stating that there "might have to be some revengeance taken" against government officials. The Court threw out the conviction, ruling that Ohio's criminal syndicalism statute was too broad in prohibiting the mere advocacy of violence.
The Brandenburg v. Ohio decision overruled several previous cases, including Whitney v. California (1927) and Schenck v. United States (1919). It also clarified that speech advocating illegal action at some indefinite future time is protected by the First Amendment, provided it does not constitute criminal conspiracy.
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The 1957 Yates case observed that 'indoctrination of a group in preparation for future violent action' is not protected by the First Amendment
Speech that incites people to break the law, including to commit acts of violence, is not protected by the First Amendment. In Brandenburg v. Ohio (1969), the Supreme Court ruled that "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action".
The 1957 Yates case observed that indoctrination of a group in preparation for future violent action is not protected by the First Amendment. The case noted that such advocacy must be directed at a specific person or group and there must be evidence, or a rational inference from the import of the language, that the speaker’s words were intended to produce, and likely to produce, imminent disorder. The group must also be of sufficient size and cohesiveness, and sufficiently oriented towards action, for the speech to be considered incitement.
In the Yates case, the court found that the advocacy was directed at 'action for the accomplishment' of forcible overthrow, and to violence 'as a rule or principle of action'. The language used was also considered to be 'the language of incitement'. The court reasonably inferred that the circumstances justified apprehension that violent action would occur.
The First Amendment to the US Constitution by default protects almost every bit of speech that we can engage in. However, there are a few areas where speech crosses the line into something that’s considered violent or criminal. Subsequent Supreme Court cases have clarified that speech advocating illegal action at some indefinite future time is protected by the First Amendment, if it does not constitute criminal conspiracy.
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Frequently asked questions
Incitement speech is speech that is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action".
No, the First Amendment does not protect incitement speech.
Speech that incites people to break the law, including to commit acts of violence, is not protected by the First Amendment.
