Advocacy of Unlawful Action and the "Incitement Test" The Issue: When does the First Amendment allow the government to punish individuals for expression that may lead to unlawful conduct?
Introduction
The first judicial suggestion that First Amendment protection should extend to subversive speech that falls short of inciting unlawful conduct can be traced to Learned Hand and his opinion in the 1917 case of Masses Publishing v Patten. Hand's decision was--at the time--a rare victory for the First Amendment. In upholding the argument of Masses Publishing that the postmaster general's refusal to allow the mailing of its "revolutionary journal" attacking capitalism and the draft violated the First Amendment, Hand said that the government may prosecute words that are "triggers to action" but not words that are "keys of persuasion."
The incitement test first urged by Learned Hand did not become part of the Supreme Court's First Amendment jurisprudence until 1969, in the per curium decision of Brandenburg v Ohio. In reversing the conviction of a Ku Klux Klan leader who gave a speech warning "that there might have to be some revengeance taken" for "continued suppression of the white, Caucasian race," the Court held that the First Amendment allows punishment only of subversive advocacy calculated to produce "imminent lawless action" and which is likely to produce such action.
Thus, Brandenburg brings together the incitement test urged by Hand and the "clear and present danger" test urged by Justices Holmes and Brandeis in their famous dissents in the 20s. The Court applied its Brandenburg analysis four years later in Hess v Indiana to reverse the conviction of a demonstrator who was overheard by a police officer to say, "We'll take the fucking street later." The Court concluded that Hess's statement, taken in context, was not aimed at producing imminent lawless conduct but rather, at the most, lawless conduct at some indefinite future time.
The Court also failed to find the Brandenburg test satisfied in NAACP v Clairborne Hardware (1982). The Court found First Amendment protection for the NAACP's practice of writing down names of blacks who violated a boycott of certain white businesses, and then reading them aloud at NAACP meetings. The Court also found constitutional protection for the statement, "If we catch any of you going in any of them racist stores, we're going to break your damn neck." The Court said the statement fell short of a direct threat or ratification of violence.
Rice v Paladin Enterprises considered the First Amendment arguments of a publisher of a how-to guide for hit men. Paladin's book, Hit Man: A Technical Manual for Independent Contractors, was concededly used by a reader as a guide for committing the brutal contract killing of three persons. A panel of the Fourth Circuit Court of Appeals ruled unanimously in Rice that Brandenburg did not bar a jury from imposing civil liability on Paladin for aiding and abetting murder. The Fourth Circuit read Brandenburg not to require imminence for the type of speech involved in Rice. In 1998, the Supreme Court denied cert in Rice.
The Incitement Test (Brandenburg)
"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."
