Incitement
"Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at birth. Eloquence may set fire to reason."— Judge Oliver Wendell Holmes Jr., dissenting in Gitlow v. New York (1925)
Reminder on how to read this deck
If a slide has this background, it's a recap of something from lecture or an extra case to read at your leisure. I won't discuss those in section. They're here to keep the order and make it easier to study later.
Weekly check-in (7 min.)
From last week's check-ins (59 of you)
| What you asked for | # | Where we pick it up |
|---|---|---|
| Brandenburg and Jan. 6: how do courts decide "directed to" and "imminent"? Does it have to be explicit? | 15 | Parts 2 and 3 |
| The ladder (purpose, knowledge, recklessness, negligence) and how to argue a case with it | 14 | "The ladder, with incitement on it" |
| Courts, appeals, states vs. federal, "what do I memorize?", plain-language refresher | 14 | "How to read a case outcome" |
| Threat vs. incitement: where's the line? (McConnell's "Resistance," ACLA) | 4 | "Same words, two doors" |
| Are politicians and public figures judged differently? | 4 | Part 3 and Part 4 |
| One-offs: Bondi, the 14th Amendment, "marketplace of ideas," Martinez, Ye | Corrections, and the pink slides |
Some quick corrections
Some quick corrections
Some quick corrections
concurrence := a separate opinion written by a justice who agrees with the outcome of a case but wants to say something different about how the Court got there, or to add something to it.
Some quick corrections
Some quick corrections
to vacate a conviction := to formally set aside, treating it as legally void. It's as if the guilty verdict is canceled, though the underlying charges may or may not remain alive depending on why it was vacated.
No idea how it ended for him. But the exam is about the doctrine, not about every fact in a lower-court case, especially after the US Supreme Court verdict.
Some quick corrections
Part 1
Where the test came from, and the words it uses
Why incitement gets a stricter test than threats
Incitement is the "closest cousin" to true threats.— Justice Sotomayor, concurring in Counterman (2023), quoted in lecture
Two differences:
1919: the test we abandoned
Context: WWI. Espionage Act (1917) and Sedition Act (1918) make it a crime to obstruct the draft or the war effort.
Schenck mails leaflets urging men to resist the draft. Convicted. Holmes, for a unanimous Court:
whether the words… create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.
Sounds reasonable. What's missing?
Abrams (1919): the leaflet and the dissent
Russian immigrants throw leaflets from a New York rooftop, denouncing the U.S. sending troops to Russia and calling for a general strike in munitions plants:
Workers in the ammunition factories, you are producing bullets, bayonets, cannon, to murder not only the Germans, but also your dearest, best, who are in Russia…— signed "The Rebels"
Convicted; the Court affirms. Holmes dissents: speech may be punished only if it
so imminently threaten[s] immediate interference with the lawful and pressing purpose of the law that an immediate check is required to save the country.
1969: the test we use now
[A State may not] 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.— Brandenburg v. Ohio (1969), per curiam
| Prong | The question | Plain English |
|---|---|---|
| Directed to | What was the speaker trying to do? | Intent. Purpose. |
| Imminent | How soon? | Minutes or hours, not days. No time to "sleep on it." |
| Likely | Would it probably work, here, with this crowd? | Probability, judged in context. |
All three, or it's protected advocacy.
directed to: vague or not?
"Brutus was an honourable man"
The ladder, with incitement on it
| Rung | What it means | Who's here |
|---|---|---|
| Purpose | You wanted the result | Incitement ("directed to"); California's threat statute |
| Knowledge | You knew it was practically certain | Federal threat statute, at least (Elonis) |
| Recklessness | You saw a substantial risk and went ahead | Constitutional floor for true threats (Counterman) |
| Negligence | A reasonable person would have seen the risk | Never enough for speech-related crimes |
How to argue a case: (1) name the category, (2) name the rung that category requires, (3) point to the evidence for or against that rung.
How to read a case outcome
The ladder of courts
A state case can reach the U.S. Supreme Court only on a federal question, like the First Amendment.
The verbs
For the exam you need to know the rule each case stands for and the one or two facts that decided it. Not every procedural step, although it is a welcome addition if you can use it in an argument.
Part 2
Running the test
Hess v. Indiana (1973): "later"
Anti-war demonstrators block a street in Bloomington, IN. The police clear it.
We'll take the fucking street later.— Hess, on the curb, says loudly in the presence of the police
Convicted of disorderly conduct. The Supreme Court reverses it
Why? Would dropping "later" be enough to affirm?
Hess v. Indiana (1973): "later"
NAACP v. Claiborne Hardware (1982): "break your damn neck"
A civil-rights boycott of white-owned stores in Port Gibson, Mississippi. Charles Evers tells a crowd:
"If we catch any of you going in any of them racist stores, we're gonna break your damn neck."
Some boycott-breakers were later harassed or hurt, weeks or months afterward. The merchants sue for their losses.
Threat? Aimed at people in the crowd. Conditional ("if we catch you").
Incitement? Addressed to a crowd. Sounds like a call to action.
The Court said protected. Why?
Same words, two doors
Weiss's email: "the resistance is coming to DC to slash your throat." One of you asked: he said others would do it, so isn't that incitement, not a threat?
| As sent | Rewritten | |
|---|---|---|
| Who got it | McConnell's inbox | A rally, or a public post: "Kentucky, go slash his throat Friday" |
| Who speaks | Weiss, using an address tied to "the Resistance": we are coming | Weiss, urging you to go |
| Category | True threat (9th Cir.: he "associated the sender… with the 'Resistance'") | Incitement question |
| Test | At least recklessness | Directed to? Imminent? Likely? |
The audience tells you which door. The door tells you which test.
Planned Parenthood v. ACLA (9th Cir. 2002): the door they chose
After Counterman, that negligence test is gone. Would the case come out the same way today?
Does a speaker's power change the test?
Four of you asked whether politicians and public figures are judged differently. Two different answers:
Under the doctrine: no. The same three prongs. But power changes the facts the prongs measure: a president's crowd is bigger, angrier and more obedient, so "likely" is easier to prove against him, not harder.
In practice: yes. Impeachment is a political trial, not a criminal one (Feldman). Presidential immunity ended the federal case. And prosecutors decide whom to charge. Kaye was charged; no politician using "fight" rhetoric has been.
Two one-offs from the check-ins
The 14th Amendment. The First Amendment says "Congress shall make no law." Gitlow (1925) read the 14th Amendment's Due Process Clause to apply it to the states. That's why Ohio (Brandenburg), Colorado (Counterman) and Washington (Beal) are bound by it. Week 1 Tracker, state action row.
"Marketplace of ideas." Holmes's Abrams dissent: the test of truth is "the power of the thought to get itself accepted in the competition of the market." When the U.S. Attorney said Kaye's threats "made no contribution to the marketplace of ideas," he was explaining why true threats are unprotected (they add nothing to debate), not setting a test. You don't earn protection by being insightful; you lose it by falling in a category.
Wrap-up
Mental state depends on the category
| Category | What the speaker has to know or intend | Who swings, at whom | Source |
|---|---|---|---|
| True threats | At least recklessness | The speaker, at the target | Counterman (2023) |
| Incitement | Purpose: "directed to" imminent lawless action, plus imminence and likelihood | The speaker's allies, at a third party | Brandenburg (1969); Hess (1973) |
| Fighting words | Not settled. The test asks how an ordinary listener would react to a personal insult said face to face | The insulted listener, at the speaker | Chaplinsky (1942); Cohen (1971) |
The flowchart grows
