Reading Brandenberg served as a test of my own biases, and while I ultimately believe the Brandenburg decision was correct, I want to be mad about it if only because the guy was a KKK leader. That being said, I do agree that we need room for heated, ugly rhetoric, or demonstrators would get locked up for their passionate hyperboles regularly.
The term “later” in Hess really was the Courts whole schtick; obviously an action is not imminent if you are scheduling your mayhem for a later time. I feel like it was huge for the Court give merit to the context in this case because protests (and the words that come with them) tend to be fueled by emotion, not the desire to pencil in some casual rioting, and a lot of that emotion comes from people's actual lived experience with oppression. The distinction between dissent and disloyalty here is going to stick with me, because dissent is not disloyalty. It is passion for change.
Allowing hateful, negative, and just plain bad speech to be protected is far less dangerous than letting the government decide which expressions/emotions are too ‘threatening’ to allow. This serves as a good reminder for me to work on my own patience and remember that (reluctantly) tolerating certain speech, is not the same as agreeing with it.
I wholeheartedly agree with the Brandenburg decision. I am curious about how the internet can change the equation though. Part of me thinks that maybe the speech in question should require a present and capable audience to meet the standard, because instinctively I feel like most people would not be willing to commit violence in furtherance of some radical speech by themselves. But I can see the opposite as well, maybe its easier to let go of non-violent inhibitions if you are isolated by yourself reading or watching someone advocate for violence online.
The framing of incitement law as being "less about danger than about trust" was the part that stuck with me. I think I had been reading Brandenburg as basically a risk calculation, how bad is the harm and how soon is it coming, so it was useful to see it described instead as a question about what we are willing to tolerate from each other. It also made Hess click for me. Saying "later" is not really a finding about whether a riot was about to happen, it is the Court deciding not to punish someone for being angry. Coming from Canada, this is still the part of American law I find hardest to get used to. We criminalize wilful promotion of hatred and Keegstra upheld that, so the idea that the Constitution does not demand civility would not really work there. I am not sure yet which system I think gets it right. But it does seem like the American rule only holds together if you assume a society stable enough to absorb the anger, and that assumption is doing a lot of work.
I agree strongly with the Brandenburg standard. We had discussed the shortcomings of Hand (indirect threats and calls to violence) and Holmes (political leaders being imprisoned). The combination of incitement + imminence strikes a good balance at protecting all speech, popular and unpopular, without meaningfully interfering with the rights of others.
The idea that incitement law is about trust is one that I hadn't heard before and find generally appealing. A government that hopes to suppress any potentially problematic speech inherently does not trust its citizens to hear negative ideas and decide not to follow them. It feels almost paternalistic and contrary to what we view government's role as being. But it does make me curious as to where the line has been drawn. In Hess, for example, if you simply remove the word later from the speech, does that become "imminent" enough to warrant suppression?
One aspect that I feel goes less recognized in this discussion is the fear of government overreach and a chilling effect on speakers who refuse to speak because of the threat of a potential prosecution. This is why strong support for the First Amendment at politically charged events (such as a KKK rally or NAACP protests, or both happening near each other) is so important. Unfortunately, as these cases and other cases like Edwards and Cox show, the police can be too quick to stop a speaker when they feel there could be potential violence. This shows the competing interests between public safety and public freedom that police have to consider when a political event appears to be out of hand. That balance should be in favor of public freedom and the speaker as much as possible, but that is easier said in a courtroom 2 years later than in the mist of the scene.
I agree that the “Constitution does not demand civility”. The Brandenburg conception of the First Amendment allows for a very broad freedom of speech, protecting even violent words so long as they do not directly incite violence. I think the test is a good balance between what Hand and Holmes argued for because it requires both directly inciting language (Hand) and likely imminent impact (Holmes). Overall, our society depends on the ability to share ugly truths and anger with each other because that is the only way to change and grow as a civilization (without repressing people to the point of revolution).
I ultimately feel uneasy but comfortable with the fine line between ideas and action. I agree that this very much feels like a decision rooted in trust in the public to hear inflammatory, dangerous, or ugly ideas and either 1) not descend into violence or 2) for other speech to quell or tame what might turn into violent or unlawful action. Ultimately, I think what makes me feel uneasy is the accountability for the speaker for speech that might get really close to the line of speech that cross into advocacy for action. For example, I think a lot about protests under the current administration where advocacy against U.S. action in some places might be construed as advocacy for unlawful action. Mainly, I think what causes the nervousness is that the test that we've identified here doesn't feel like it's really being implemented and that it has the potential to be eroded in the future. I suppose none of our protections are truly set in stone, but this one especially feels likely to be temporary.
What stood out to me is that the same rule that protected Clarence Brandenburg at a Klan rally protected Charles Evers at an NAACP mass meeting. That symmetry is the point: the rule doesn't ask whose cause is sympathetic. The older tools in this reading worked differently. Feiner let police stop a speaker who told Black listeners to "rise up" once the crowd got restless, and Justice Black warned that "minority speakers can be silenced in any city." The casebook also notes that Chaplinsky is still used to punish racial minorities for talking back to police. That makes me read the "trust" framing as partly a matter of who gets trusted, since the flexible pre-Brandenburg standards tended to go against marginalized speakers. I do wonder whether that protection holds after Thompson v. Trump, which says incitement can be "implicit" and read against the speaker's knowledge of the audience. A context-heavy test like that could bring back the same discretion Brandenburg was supposed to take away.
As Brandenburg began and I saw the words "a leader of a Kl Klux Klan group" I assumed the ending of the case before reading even a word further. It is so easy to stumble into the pitfall of assuming someone's action is going to be ruled as constitutionally wrong because it is morally wrong to me as the reader. Obviously that is a slippery slope. You could say you hate any number of politicians and want to swear "revengeance" on them. Would that be cause for violation of the kind of statute in Brandenburg? Just because Brandenburg's words were cruel (and probably shocking) to many listeners is not a reason for arrest. I think the decision was very well reasoned. People say hateful, goading things all the time. The line has to be drawn somewhere, or we would be arresting people by the truckload at every bar and truck stop.
Reading Brandenberg served as a test of my own biases, and while I ultimately believe the Brandenburg decision was correct, I want to be mad about it if only because the guy was a KKK leader. That being said, I do agree that we need room for heated, ugly rhetoric, or demonstrators would get locked up for their passionate hyperboles regularly.
The term “later” in Hess really was the Courts whole schtick; obviously an action is not imminent if you are scheduling your mayhem for a later time. I feel like it was huge for the Court give merit to the context in this case because protests (and the words that come with them) tend to be fueled by emotion, not the desire to pencil in some casual rioting, and a lot of that emotion comes from people's actual lived experience with oppression. The distinction between dissent and disloyalty here is going to stick with me, because dissent is not disloyalty. It is passion for change.
Allowing hateful, negative, and just plain bad speech to be protected is far less dangerous than letting the government decide which expressions/emotions are too ‘threatening’ to allow. This serves as a good reminder for me to work on my own patience and remember that (reluctantly) tolerating certain speech, is not the same as agreeing with it.
I wholeheartedly agree with the Brandenburg decision. I am curious about how the internet can change the equation though. Part of me thinks that maybe the speech in question should require a present and capable audience to meet the standard, because instinctively I feel like most people would not be willing to commit violence in furtherance of some radical speech by themselves. But I can see the opposite as well, maybe its easier to let go of non-violent inhibitions if you are isolated by yourself reading or watching someone advocate for violence online.
A realistic chance that speech will translate into action—as determined by the surrounding context—is definitely a key part of the Brandenburg test!
The framing of incitement law as being "less about danger than about trust" was the part that stuck with me. I think I had been reading Brandenburg as basically a risk calculation, how bad is the harm and how soon is it coming, so it was useful to see it described instead as a question about what we are willing to tolerate from each other. It also made Hess click for me. Saying "later" is not really a finding about whether a riot was about to happen, it is the Court deciding not to punish someone for being angry. Coming from Canada, this is still the part of American law I find hardest to get used to. We criminalize wilful promotion of hatred and Keegstra upheld that, so the idea that the Constitution does not demand civility would not really work there. I am not sure yet which system I think gets it right. But it does seem like the American rule only holds together if you assume a society stable enough to absorb the anger, and that assumption is doing a lot of work.
I agree strongly with the Brandenburg standard. We had discussed the shortcomings of Hand (indirect threats and calls to violence) and Holmes (political leaders being imprisoned). The combination of incitement + imminence strikes a good balance at protecting all speech, popular and unpopular, without meaningfully interfering with the rights of others.
The idea that incitement law is about trust is one that I hadn't heard before and find generally appealing. A government that hopes to suppress any potentially problematic speech inherently does not trust its citizens to hear negative ideas and decide not to follow them. It feels almost paternalistic and contrary to what we view government's role as being. But it does make me curious as to where the line has been drawn. In Hess, for example, if you simply remove the word later from the speech, does that become "imminent" enough to warrant suppression?
One aspect that I feel goes less recognized in this discussion is the fear of government overreach and a chilling effect on speakers who refuse to speak because of the threat of a potential prosecution. This is why strong support for the First Amendment at politically charged events (such as a KKK rally or NAACP protests, or both happening near each other) is so important. Unfortunately, as these cases and other cases like Edwards and Cox show, the police can be too quick to stop a speaker when they feel there could be potential violence. This shows the competing interests between public safety and public freedom that police have to consider when a political event appears to be out of hand. That balance should be in favor of public freedom and the speaker as much as possible, but that is easier said in a courtroom 2 years later than in the mist of the scene.
I agree that the “Constitution does not demand civility”. The Brandenburg conception of the First Amendment allows for a very broad freedom of speech, protecting even violent words so long as they do not directly incite violence. I think the test is a good balance between what Hand and Holmes argued for because it requires both directly inciting language (Hand) and likely imminent impact (Holmes). Overall, our society depends on the ability to share ugly truths and anger with each other because that is the only way to change and grow as a civilization (without repressing people to the point of revolution).
I ultimately feel uneasy but comfortable with the fine line between ideas and action. I agree that this very much feels like a decision rooted in trust in the public to hear inflammatory, dangerous, or ugly ideas and either 1) not descend into violence or 2) for other speech to quell or tame what might turn into violent or unlawful action. Ultimately, I think what makes me feel uneasy is the accountability for the speaker for speech that might get really close to the line of speech that cross into advocacy for action. For example, I think a lot about protests under the current administration where advocacy against U.S. action in some places might be construed as advocacy for unlawful action. Mainly, I think what causes the nervousness is that the test that we've identified here doesn't feel like it's really being implemented and that it has the potential to be eroded in the future. I suppose none of our protections are truly set in stone, but this one especially feels likely to be temporary.
What stood out to me is that the same rule that protected Clarence Brandenburg at a Klan rally protected Charles Evers at an NAACP mass meeting. That symmetry is the point: the rule doesn't ask whose cause is sympathetic. The older tools in this reading worked differently. Feiner let police stop a speaker who told Black listeners to "rise up" once the crowd got restless, and Justice Black warned that "minority speakers can be silenced in any city." The casebook also notes that Chaplinsky is still used to punish racial minorities for talking back to police. That makes me read the "trust" framing as partly a matter of who gets trusted, since the flexible pre-Brandenburg standards tended to go against marginalized speakers. I do wonder whether that protection holds after Thompson v. Trump, which says incitement can be "implicit" and read against the speaker's knowledge of the audience. A context-heavy test like that could bring back the same discretion Brandenburg was supposed to take away.
As Brandenburg began and I saw the words "a leader of a Kl Klux Klan group" I assumed the ending of the case before reading even a word further. It is so easy to stumble into the pitfall of assuming someone's action is going to be ruled as constitutionally wrong because it is morally wrong to me as the reader. Obviously that is a slippery slope. You could say you hate any number of politicians and want to swear "revengeance" on them. Would that be cause for violation of the kind of statute in Brandenburg? Just because Brandenburg's words were cruel (and probably shocking) to many listeners is not a reason for arrest. I think the decision was very well reasoned. People say hateful, goading things all the time. The line has to be drawn somewhere, or we would be arresting people by the truckload at every bar and truck stop.