The Past and Future of Incitement

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You can only make up your own definition of “incitement” on Twitter and at presidential impeachment trials. Otherwise, the actual law is going to have to do.

The context is clear: As they geared up for an impeachment, Democrats and mainstream media have sold the events of January 6, 2021, to frightened Americans as a new 9/11, to be the prime mover for defining a whole new range of “crimes.” Incitement will become this generation’s “material support to terrorism,” meaning the complex legal definition will be massaged in the name of security so that it will become a word, and thus a crime, that will mean whatever the Dems, media, and FBI want it to mean.

The Department of Homeland Security already issued its first new terrorism alert in ages, warning of domestic anti-government extremists among us. The kid in his bedroom chatting online will be talking to a Fed pretending to be a white supremacist instead of from ISIS. The arrest for “incitement”—those DMs, supposedly about white supremacy—will be played across the news and, as with after 9/11, lead to calls for more censorship, more surveillance, more arrests. It’s the 2001 playbook all over again. 

Only this time it got an upgrade. Incitement scales well. Instead of just being pointed at naive kids online, it can be a death ray aimed at a conservative writer, a member of Congress, anyone with a platform. An allegation of incitement is not aimed at stopping violence. It is a way to eliminate an opinion, take out a rival, even impeach a president. 

Current law stands in the way, however. Following the evolution of free speech over the decades, it has created increasingly specific tests to determine when speech becomes such a danger that it must be stopped. There’s a lot more to it than just that old bit about not being allowed to shout fire in a crowded theater.

Justice Oliver Wendell Holmes wrote, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger.” The “Fire!” quote from the Supreme Court decision in Schenck v. United States is often cited as defining the limits of free speech. 

But Schenck is what jurists call bad law, in that it sought to use the Espionage Act to stop free speech by a Socialist pamphleteer opposing WWI, not protect it. The case was overturned, so Holmes’s statement is better understood not as a 21st century test but simply a statement that while the First Amendment is not absolute, restrictions on speech should be narrow and limited. 

It would be for the later case of Brandenburg v. Ohio to refine the modern standard for restricting speech. Brandenburg v. Ohio(Clarence Brandenburg was an Ohio KKK leader who used the N-word with malice) precludes speech from being sanctioned as incitement to violence unless 1) the speech explicitly or implicitly encouraged the use of violence or lawless action; 2) the speaker intends their speech will result in the use of violence or lawless action; and 3) the imminent use of violence or lawless action is the likely result of the speech. 

Brandenburg is the Supreme Court’s final statement to date on what government may do about speech that seeks to incite others to lawless action. It was intended to resolve the debate between those who urge greater control of speech and those who favor as much speech as possible before relying on the marketplace of ideas to sort things out.

That second test under Brandenburg, intent, is purposely hard to prove. A hostile reaction of a crowd does not automatically transform protected speech into incitement. Listeners’ reaction to speech is thus not alone a basis for regulation, or for taking an enforcement action against a speaker. The speaker had to clearly want to, and succeed in, causing some specific violent act. 

In a 1982 case,Claiborne v. NAACP, the Court ruled NAACP civil rights leaders were not responsible for a crowd which, after hearing them speak, burned down a white man’s hardware store. The state of Mississippi charged the leaders with incitement on the grounds that their speeches urging a boycott of white-owned stores incited their followers to violence. The state’s argument was that the NAACP must have known their inflammatory rhetoric would drive the crowd to violence even if they did not demand so out loud.

The Supreme Court rejected that argument, explaining free speech will die if people are held responsible not for their own violent acts but for those committed by others who heard them speak and were motivated in the name of that cause. The Court wrote “there is no evidence—apart from the speeches themselves that [the NAACP leader] authorized, ratified, or directly threatened acts of violence… to impose liability without a finding that the NAACP authorized—either actually or apparently—or ratified unlawful conduct would impermissibly burden the rights of political association that are protected by the First Amendment.”

The Court concluded instead that the NAACP “through exercise of their First Amendment rights of speech, assembly, association, and petition, rather than through riot or revolution, sought to bring about political, social, and economic change.” Some damn fine words there. 

The law is similar in regards to (incitement to) sedition, seeking to overthrow the U.S. government. It is intimately tied to the concept of free speech, as any true attempt at overthrow, as well as any legitimate criticism of the government, will include stirring up crowds. The line between criticizing the government and organizing for it to be overthrown is a critical juncture in a democracy.

Current law requires the government to prove someone conspired to use force. Actively planning such an action (distributing guns, working out logistics, actively opposing lawful authority, etc.) could be considered sedition. But simply advocating broadly for the use of violence is not the same thing as violence and in most cases is protected as free speech. For example, suggesting the need for revolution “by any means necessary” is unlikely to be seen as conspiracy to overthrow the government by force.

All of this may soon be thrown away, however. Joe Biden and the Democratic Congress are considering new laws against domestic terrorism which will likely stretch the current definitions of incitement and sedition, with the Trump impeachment as their philosophical touchstone. The new laws may seek to define beliefs such as “whites are a superior race” not as bad science or an unsavory opinion but as an actual threat, an illegal thought. Proposals include prohibiting people with such beliefs from joining the military or law enforcement, maybe Congress itself.

The groundwork is already in place. Don’t forget Biden claims credit for writing the original Patriot Act. Establishment media have been priming Americans to believe they have too many rights for their own safety. The New York Times is openly soliciting stories about “right-wing extremism” in the military.

Tension has always existed between the poetry of the First Amendment and the concept of incitement as a point where words should be criminalized. It sounds easy to sort out, until you consider almost any political viewpoint, passionately expressed, has the potential to incite. But a democracy can’t exactly lock up everyone who says aloud “abortion is murder” or encourages people to “fight” for their rights. Speech that inspires, motivates, stirs up the blood is not incitement, and in fact is an important part of a rugged democracy. 

On paper at least, America legally holds that, apart from some narrow exceptions, free speech exists independent of the content of that speech. This is one of the most fundamental precepts of our democracy. Violence following a speech does not mean the speech caused the violence. Not every dissenter is a domestic terrorist. There is no need for protection for things people agree with, things that are not challenging or debatable or offensive. The true tests for a democracy come at the edges, not in the middle. We need faith in free speech, not a party affiliation, to make America great again.  

Peter Van Buren is the author of We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People,Hooper’s War: A Novel of WWII Japan, and Ghosts of Tom Joad: A Story of the 99 Percent.

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