Past and Future of Incitement
You can only create your own definition of “inciting” on Twitter and in impeachment proceedings against the President. Otherwise the actual law must apply.
The context is clear: As they prepared for impeachment, Democrats and mainstream media sold the January 6, 2021 events to frightened Americans as the new September 11, for the driving force behind defining a whole new set of “crimes . “Incitement is becoming the ‘material support for terrorism’ of this generation, which means that the complex legal definition is massaged in the name of security so that it becomes a word and therefore a crime, whatever the dams, Media and the FBI want it to mean.
The Department of Homeland Security has been issuing its first new terrorism alert in ages, warning of domestic anti-government extremists among us. The kid in his bedroom chatting online will be speaking to a Fed pretending to be a white supremacist instead of ISIS. The “inciting” arrest – these DMs, supposedly because of white supremacy – is being played on the news and, as after 9/11, has led to calls for more censorship, more surveillance and more arrests. It’s the 2001 playbook again.
Only this time it got an upgrade. Incitement scales well. Instead of just being alerted to naive children online, it can be a death ray aimed at a conservative writer, a member of Congress, or anyone with a platform. An allegation of incitement is not intended to stop violence. It’s a way of eliminating an opinion, knocking out a rival, or even indicting a president.
However, current law stands in the way. As free speech evolved over the decades, more and more specific tests have been created to determine when language becomes such a threat that it must be stopped. There’s a lot more to it than just the old piece of not being allowed to scream fire in a crowded theater.
Judge Oliver Wendell Holmes wrote: “The strictest protection of freedom of speech would not protect a man if he falsely screamed fire and caused panic in a theater. In any event, the question arises as to whether the words used are used in such circumstances and are such as to create a clear and present danger. “The fire!” Quote from the Supreme Court decision in Schenck versus the United States is often cited as a definition of the limits of freedom of speech.
But Schenck is what lawyers call bad law, as they wanted to use the espionage law to stop and not protect the freedom of speech of a socialist pamphlet against the First World War. The case has been dropped, so Holmes’ statement is better understood not as a test of the 21st century, but merely as a statement that while the first change is not absolute, the language restrictions should be tight and limited.
It would be for the later case of Brandenburg versus Ohio refine the modern standard for restricting language. Brandenburg versus Ohio(Clarence Brandenburg was a KKK leader in Ohio who used the N word with malice) rules out language being sanctioned as incitement to violence unless 1) the speech expressly or implicitly encouraged the use of violence or lawless behavior ; 2) the speaker intends his speech to result in the use of force or lawlessness; and 3) the impending use of violence or lawless behavior is the likely outcome of the speech.
Brandenburg is the Supreme Court’s final final statement so far on what the government can do against speech to incite others to act outlawed. It was intended to resolve the debate between those who want greater control over language and those who prefer as much language as possible before relying on the marketplace of ideas to sort things out.
This second test below BrandenburgIntentional intent is difficult to prove. A hostile reaction from a crowd does not automatically turn protected language into incitement. The listener’s response to speech is therefore not solely a basis for regulation or enforcement action against a speaker. The speaker clearly had to want and be able to cause a particular act of violence.
In a case from 1982Claiborne versus NAACPThe court ruled that the NAACP civil rights activists were not responsible for a crowd who, after speaking, burned down a white man’s hardware store. The state of Mississippi accused the leaders of incitement on the grounds that their speeches calling for a boycott of white-owned businesses incited violence among their supporters. The state’s argument was that the NAACP must have known that its inflammatory rhetoric would drive the crowd to violence, even if it wasn’t so loud.
The Supreme Court rejected this argument, stating that freedom of speech will die when people are held responsible not for their own acts of violence but for those committed by others who heard them speak and were motivated in the name of this cause. The court wrote: “There is no evidence other than the speeches themselves [the NAACP leader] authorized, ratified, or imminent acts of violence … to impose liability without finding that the NAACP – either actual or apparent – or ratified unlawful conduct would unduly encumber the rights of the political association protected by the first amendment. “
The Court instead concluded that the NAACP “sought political, social and economic change by exercising its rights of speech, assembly, association and petitioning under the First Amendment, and not through riot or revolution”. Some damn good words.
The law is similar in relation to (inciting) riot aimed at overthrowing the US government. It is closely related to the concept of free speech as any real attempt at overthrow, as well as any legitimate criticism of the government, will involve stirring up crowds. The line between criticizing the government and organizing for the overthrow is a critical point in a democracy.
Under current law, the government must show that someone has conspired to use force. The active planning of such an action (arms distribution, working out the logistics, active denial of legal authority, etc.) could be seen as a riot. However, widespread support for the use of force is not the same as violence and in most cases it is protected as free expression. For example, the need for revolution “by all means” is unlikely to be viewed as a conspiracy to overthrow the government by force.
However, all of this could soon be thrown away. Joe Biden and the Democratic Congress are considering new laws against domestic terrorism that are likely to expand current definitions of incitement and sedition, with Trump impeachment being their philosophical touchstone. The new laws could try to define beliefs like “whites are a superior race” not as bad science or unsavory opinion, but as a real threat, as an illegal thought. Proposals include banning anyone with such beliefs from joining the military or law enforcement agencies, possibly Congress itself.
The basics are already in place. Don’t forget that Biden is claiming credit for writing the original Patriot Act. The establishment media prepared Americans to believe they have too many rights for their own safety. The New York Times Openly asks for stories about “right-wing extremism” in the military.
There has always been tension between the poetry of the First Amendment and the concept of incitement as a point at which words should be criminalized. It sounds easy to sort out until you consider almost all of them A passionate political stance has the potential to create incentives. But a democracy cannot lock up anyone who says aloud, “Abortion is murder” or encourages people to “fight” for their rights. Language that inspires, motivates, stirs the blood is not incitement, and indeed an important part of a harsh democracy.
At least on paper, America legally takes the view that, with a few narrow exceptions, freedom of speech exists regardless of the content of this speech. This is one of the most fundamental tenets of our democracy. Violence after a speech does not mean that the speech caused the violence. Not everyone who thinks differently is a domestic terrorist. There is no need to protect things that people agree to, things that are not challenging or controversial or offensive. The real tests of democracy come on the edges, not the middle. We need trust in free speech, not 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,Hoopers War: A World War II novel in Japan, and Ghosts of Tom Joad: A 99 percent story.