A democracy can’t lock up everyone who stirs up a crowd, even if they use the N-word or other hateful speech to do so. Speech which inspires or motivates cannot be illegal as it is the very stuff of democracy. While in no way supporting the racial thoughts of the Buffalo shooter, it is important to remember that at various times in our nation’s history people sought to silence those who wanted to stir a crowd to rise against slavery, oppose war, or demand voting rights for women. At the same time the 1A protects the words of a speaker, it also protects him from the actions of whatever people who heard him talk did later.

The first try at restricting “dangerous speech” was Schenck v. United States, which produced Hochul’s misunderstood line about not shouting fire in a crowded theatre. It would be for the later case of Brandenburg v. Ohio (Clarence Brandenburg was an KKK leader who used the N-word with malice) which Hochul does not appear to have read, to refine the modern standard for restricting speech. It tightened the criteria to 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.

The key to Brandenburg is intent. You have to prove, not just speculate, the speaker wanted to cause violence. 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 action against a speaker. The speaker had to clearly want to cause some specific illegal act and set out to find the words to make that happen. Now whatever the Buffalo shooter wrote or read online may have indeed fit such standards, but you can be damn sure Governor Hochul had no idea of the details as she stood demanding censorship.

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What stands in the way is current law, which following the evolution of free speech over the decades, has created increasingly specifics test on when speech becomes such a danger it must be stopped. And there’s a lot more to it than just that old bit about not being allowed to shout fire in a crowded theatre.

From its earliest days concerns existed about the interplay between the 1A and the ability of  speech to incite violence to the point where words should be censored or 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 accuses the president of murdering young boys sent into an unwanted war. Speech which inspires, motivates, stirs up the blood is not incitement, and in fact is an important part of a rugged democracy. Can every speaker be held responsible for what people who hear him talk do later? A finer line was needed.

The Fire! quote from the Supreme Court decision in Schenck v. United States is often cited as justification for limiting free speech. 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.”

Words in these decisions have hyper-specific legal meanings, often defined through multiple cases, which is why simply Googling a term and passing judgment on its vernacular via Twitter usually is wrong. The Fire! line is actually a kind of inaccurate shorthand. The full decision says the First Amendment doesn’t protect speech that meets three conditions: 1) the speech must be demonstrably false; 2) it must be likely to cause real harm, not just offense or hurt feelings, and 3) must do so immediately.

But Schenck was what jurists call bad law, in that it sought to use the Espionage Act against a Socialist pamphleteer opposing WWI to stop free speech, not protect it. The case was eventually overturned, and Holmes’ statement is better understood not as a 21st century test but to simply mean 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, a more specific definition than in Schenck. 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.

Intent as included in Brandenburg 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. The reliance on intent exposes the danger of the 1A not applying to corporate censors. Twitter suppressed the speech of 70,000 users simply for retweeting material with “the potential to lead to offline harm” under its Orwellian named Civic Integrity Policy, no intent required. They made up their own version of the law.

The law is similar for (incitement to) sedition, seeking to overthrow the U.S. government by force. It is intimately tied to the concept of free speech in that any true attempt at overthrow, as well as any legitimate criticism of the government, will include persuasion and stirring up of 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 prove someone conspired to use force. 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. But actively planning such an action (distributing guns, working out the logistics, actively opposing lawful authority, etc.) could be considered sedition.

A 1982 case, Claiborne v. NAACP, not only made clear the Court’s strict standards on blocking speech for incitement but also how such suppression can strike any view, not just conservative ones. In the 1982 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 had wanted to charge the NAACP leaders with incitement on the grounds their speeches urging a boycott of white-owned stores incited their followers to burn down a store. The state’s argument was that the NAACP leaders knew their inflammatory rhetoric would drive the crowd to violence.

The Supreme Court rejected that argument, explaining that 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.” They concluded instead 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.”

All of this may soon change, however. Joe Biden and the Democratic Congress are actively considering new laws (“Patriot Act 2.0”) against domestic terrorism which will likely draw from and enlarge 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.

The groundwork is already in place. Don’t forget Biden often claims credit for writing the original Patriot Act. The MSM has been priming Americans to believe they have too many rights for their own safety. The NYT is opening soliciting stories about “right wing extremism” in the military.

It is necessary to say it again. America at present, on paper at least, legally holds apart from some very narrow exceptions free speech exists independent of the content of that speech. This is one of the most fundamental precepts of our democracy. There is no need for protection for things people agree with, things that are not challenging or debatable or offensive. Free speech is not needed to discuss the weather or sports. The true tests for a democracy come at the edges, not in the middle.

 

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