Incitement and the Constitution
A Guide for the Perplexed
As constitutional law now stands, the Constitution 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.”
That is from Brandenburg v. Ohio (1969), with my italics, and it is generally understood to state the prevailing constitutional test for regulation of “incitement.”
Note that it is a demanding test. The speech must be a) directed to incite and b) likely to incite c) imminent lawless action. Under Brandenburg, the Constitution protects a lot of speech that might be deemed to be “incitement.” (If you want a simple summary of where the law is, you can stop reading now.)
The Brandenburg test is the current incarnation of the clear-and-present-danger test, promoted by Justice Oliver Wendell Holmes, Jr.; it is a highly speech-protective version, because it forbids regulation of a lot of speech that might be considered incitement. If, for example, someone advocates law violation, but law violation is not imminent or likely, then the relevant advocacy seems to be protected.
Judge Learned Hand had a different view. He wrote, “One may not counsel or advise others to violate the law as it stands. Words are not only the keys of persuasion, but the triggers of action, and those which have no purport but to counsel the violation of law cannot by any latitude of interpretation be a part of that public opinion which is the final source of government in a democratic state.” Masses Publishing Co. v. Patten (1917).
Hand thought that the focus should be on what people say (did they advocate law violation?) and not on the consequences of what they say. But Hand’s view is not the law.
For a long time, the Court used what is often called the “bad tendency” test, which is a watered down version of the clear-and-present-danger test. Under that test, the Constitution does not protect speech that might reasonably be taken to be dangerous.
See Whitney v. California (1924): “That the freedom of speech which is secured by the Constitution does not confer an absolute right to speak, without responsibility, whatever one may choose, or an unrestricted and unbridled license giving immunity for every possible use of language and preventing the punishment of those who abuse this freedom, and that a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to incite to crime, disturb the public peace, or endanger the foundations of organized government and threaten its overthrow by unlawful means, is not open to question.” (My italics.) Brandenburg is the law, not Whitney.
A specter haunts modern constitutional law, and it is Dennis v. United States (1951). There the Court allowed government to restrict certain Communist speech and understood the clear-and-present-danger test very differently from how the Brandenburg Court did. The Court was thinking this: What if speech is essentially lighting a match, and we know that there might be a horrific fire - not soon, and not certainly, but possibly, and if it happens, it will be truly horrific. Does the clear-and-present-danger test render the government powerless to respond?
Here is what the Court said: “Obviously, the words cannot mean that, before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited. If Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the Government is required. The argument that there is no need for Government to concern itself, for Government is strong, it possesses ample powers to put down a rebellion, it may defeat the revolution with ease needs no answer. For that is not the question. Certainly an attempt to overthrow the Government by force, even though doomed from the outset because of inadequate numbers or power of the revolutionists, is a sufficient evil for Congress to prevent. The damage which such attempts create both physically and politically to a nation makes it impossible to measure the validity in terms of the probability of success, or the immediacy of a successful attempt.”
Under Dennis, then, imminence is not required, and likelihood does not seem to be required, either. “We must therefore reject the contention that success or probability of success is the criterion.”
So the Court adopted a version of the clear-and-present test that Judge Learned Hand, after failing with his approach in Masses, offered instead: "In each case, [courts] must ask whether the gravity of the 'evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger."
Note well: The Dennis test does not require that the danger be clear or that the danger be present!
Dennis has not been overruled, but it is generally (not universally) thought to be a relic, and that Brandenburg states the law.
The Court has not had a serious occasion to revisit these issues. As Jud Campbell has shown, the original public meaning of the First Amendment was much less protective than Brandenburg, and there is an argument that the “bad tendency” test was closer to that original meaning. Some members of the Court might be interested in revisiting Brandenburg.
My focus has been on “incitement” and on whether and when it is regulable. There are of course other categories of regulable speech, including (a) libel, (b) criminal conspiracy, (c) criminal solicitation, and (d) “fighting words.” In each of these cases, there are serious constitutional limits on what government can do; but still, the government has a degree of regulatory authority.