When Speech Goes To Far – Inciting Imminent Violence

July 15, 2024 by Tom Roberts, Esq.

America has been bombarded with images, calls for violence and prosecutions.

“There is no place in America for this kind of violence or any violence for that matter. An assassination attempt is contrary to everything we stand for … as a nation – everything,” – President Joe Biden

Educational Content – Civil rights attorney explains the law regarding inciting political speech–“Irresponsible, offensive, vile but often protected.”

First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

When is a call to violence not protected under the 1st Amendment?

Only speech that explicitly or implicitly encourages the imminent use of violence or lawless action is outside the protection of the First Amendment.

The protections of the 1st Amendment are so broad that the mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it.*1 To forfeit constitutional protection, the offensive inciting speech must “specifically advocate” for listeners to take unlawful action. *2

Under a test created by the U.S. Supreme Court, called the “Brandenburg Test”, speech is not protected if (1) the speech explicitly or implicitly encourages the use of violence or unlawful action, (2) the speaker intends that his speech will result in the use of violence or unlawful action, and (3) the imminent use of violence or lawless action is the likely result of his speech.*3

Courts must make an independent examination of the whole record to make sure that the 1st Amendment is protected, looking at content, form and context.

What? Where? How?

The court is obligated to make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression. In considering content, form, and context, no factor is dispositive, and it is necessary to evaluate all the circumstances of the speech, including what was said, where it was said, and how it was said. *4

Why Offensive & Deplorable Speech Is Protected – Because Freedom Comes At A Price, Including Offensive Speech By Biden, Trump and Others.

Speech is powerful. As a nation, we have chosen to protect unrefined, disagreeable, and even hurtful speech to ensure that we do not stifle public debate. As voters, you can have an equal right and responsibility to be heard.

As vile, offensive, deplorable and irresponsible as each of these speakers’ comments are, unlike the liberal actions to censor speech, their speech is probably protected under the 1st Amendment – but nothing requires you to support them.

President Joe Biden – “It’s time to put Trump in the bullseye!

Johnny Depp – “When was the last time an actor assassinated a president?”

Kathy Griffin – holding a bloody, decapitated Trump head.

Robert De Niro – “I’d like to punch him [Trump] in the face.”

Larry Wilmore – “I don’t want to give him any more oxygen. That’s not a euphemism, by the way. I mean it literally. Somebody get me the pillow they used to kill [Supreme Court Justice Antonin] Scalia and I’ll do it — I’ll do it!”

George Lopez – tweeted a cartoon of Mexican president Vincente Fox holding the decapitated head of Donald Trump.

The list of irresponsible and offensive comments goes on on both sides of the aisle…

FOOTNOTES:

*1 – Bible Believers v. Wayne Cty., Mich., 805 F.3d 228, 246 (6th Cir. 2015) (en banc) at 245 (quoting Ashcroft v Free Speech Coal., 535 US. 234, 253 (2002).

*2 – Hess v. Indiana, 414 U.S. 105, 109, 94 S. Ct. 326, 38 L. Ed. 2d 303 (1973)).

*3 – Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969)

*4 – Snyder v. Phelps, 562 U.S. 443, 131 S. Ct. 1207, 179 L. Ed. 2d 172 (2011)

Thomas H. Roberts & Associates, PC

When Speech Goes To Far – Inciting Imminent Violence

When is a call to violence not protected under the 1st Amendment?

Only speech that explicitly or implicitly encourages the imminent use of violence or lawless action is outside the protection of the First Amendment.

Courts must make an independent examination of the whole record to make sure that the 1st Amendment is protected, looking at content, form and context.

Why Offensive & Deplorable Speech Is Protected – Because Freedom Comes At A Price, Including Offensive Speech By Biden, Trump and Others.

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