Supreme Court decisions have developed numerous categories of speech in an effort to establish clearly when speech that may harm, frighten, intimidate, offend, or infringe the civil liberties of others is/is not protected under the First Amendment. Use the category of speech incitement to discuss the ways in which speech categories do not always succeed in clarifying the boundaries of protected speech.

Question

What will be an ideal response?

Answer 1

Relevant and significant ideas might include: (1) Justice Oliver Wendell Holmes’s dissent in Gitlow v. New York in which he argued that “every idea is an incitement.” (2) The historical slide of tests (from clear and present danger to the current Brandenburg/Hess test) shows a tendency for the government to exaggerate the perceived danger and undervalue the speech. A test without very specific standards is likely to perpetuate this problem. (3) If the category of incitement is not narrowly drawn to avoid infringing on protected speech, the category fails to serve its purpose and its application is unconstitutional (overbreadth and vague). (4) The distinction between advocating radical ideas or actions and inciting violence may be a matter of degree or subjective judgment, and the judgment of officials on the scene at the time of the speech will tend to suppress too much speech (Brandenburg v. Ohio). (5) Each element of the test is problematic: (a) directed toward inciting, (b) immediate violent or illegal action, (c) and likely to produce that action. (6) The incitement test’s requirement that the speaker intend to incite requires officials to read the mind of the speaker, rely on circumstantial evidence or crowd response (heckler’s veto), or rely on assumptions and perceptions that have a tendency to overregulate speech (e.g., clear and present danger). (7) The incitement test’s requirement that the speech produce immediate violence is both uncertain and vague: How soon is immediate?; What is the level of causation required?; etc. (8) The incitement test’s requirement that the speech be likely to produce the subsequent violence or illegal acts is speculative and relies on a prediction based on conjecture and assumption. Thus the determination of whether speech provokes immediate violence can never be answered unless the violence occurs, when the violence itself could be punished with no threat to the Constitution. (9) The weaknesses of the test mean that the category of incitement effectively cannot constitutionally be punished or does not exist. In either case, the law would be much more clear if the category did not exist.