When Speech Goes Too Far: Incitement to Imminent Lawless Action Explained

Take a look at the quotes below representing two different views on protests and riots. Both are examples of speech protected by the First Amendment, and there is no evidence that either directly resulted in violence:

"These THUGS are dishonoring the memory of George Floyd, and I won't let that happen. Just spoke to Governor Tim Walz and told him that the Military is with him all the way. Any difficulty and we will assume control but, when the looting starts, the shooting starts. Thank you!"

— President Donald Trump, May 29, 2020

“Urban riots must now be recognized as durable social phenomena. They may be deplored, but they are there and should be understood. Urban riots are a special form of violence. They are not insurrections. The rioters are not seeking to seize territory or to attain control of institutions. They are mainly intended to shock the white community. They are a distorted form of social protest.”

— Rev. Dr. Martin Luther King Jr., Sept. 1, 1967

But what if they had resulted in violence? Would the speakers be responsible for that outcome and found guilty of something called “incitement to imminent lawless action”? Or would it just be the case of a very influential and powerful speaker using their First Amendment free speech and freedom of assembly rights?

Where is the line drawn between protected and unprotected speech? And what exactly is incitement to imminent lawless action?

We answer these questions on incitement and more in this article.

The First Amendment protects speech and assembly — with some exceptions

The First Amendment freedom of speech protects the ability to express beliefs and opinions, free from undue government interference. Freedom of assembly offers similar protection to gather peacefully, including to engage in public protest. This protection is viewpoint-neutral, meaning the government is not supposed to pick sides in our public conversations.

But First Amendment protections are not without limits. Certain narrow categories of speech fall outside the protection of the First Amendment. Some of these exceptions exist because the speech causes more harm than good, like defamation, obscenity, plagiarism and blackmail. Other exceptions represent a line that has been crossed from protected speech into harmful conduct or action, like fighting words, true threats or incitement to imminent lawless action.

What is incitement to imminent lawless action?

Incitement to imminent lawless action is a category of unprotected speech. The U.S. Supreme Court established its definition of incitement in 1969, recognizing the need to draw a line between protecting free speech and punishing illegal activity (Brandenburg v. Ohio).

Incitement to imminent lawless action exists where speech ends, and the next logical and intended step is illegal action. It requires that:

• The speaker intends to incite unlawful behavior.
• The speaker knows or intends for that unlawful behavior to happen very soon.
• The speech is likely to incite or produce such lawless action.

In establishing this definition, the court drew the line in favor of protecting as much speech as possible — consistent with its reasoning that free speech needs “breathing space” to survive (New York Times Co. v. Sullivan, 1964). Simply expressing an unpopular opinion cannot be punished because that would violate the principle of viewpoint neutrality. Even advocating illegal ideas is protected, as it’s sometimes necessary in petitioning the government to change those same laws.

How does incitement to imminent lawless action apply to everyday scenarios?

The most common instance where incitement to imminent lawless action applies is during a protest or rally. A particularly energetic speaker may whip the crowd into a frenzy. The crowd may get out of control and cause damage to property or injuries to people.

Another area in which incitement may occur is through social media. The combination of a polarized society and vitriolic speech online, with the potential to reach the world, can motivate millions of people to take action, sometimes with the added security blanket of anonymity. Sometimes it just takes one person, acting on one social media post against one perceived rival. Either way, the result is that heated rhetoric has led to injury. For instance, someone posts a false claim on election day that there is fraud at a local voting site and tells their followers to go “shut down the polls before it is too late” — a claim that is taken seriously and literally, with those followers physically blocking people from voting.

The question in either situation remains the same: Did the speaker intend for this result to immediately ensue, and was that the likely outcome?

This is more likely at an in-person protest due to the more immediate connection between speech and responsive action. There is also a more direct connection between a speaker and their intended audience at an in-person event than there is between a social media poster and an audience of people with whom they have no direct connection.

Meanwhile, violent or illegal activity in response to a social media post could be immediate but also could occur hours, days, weeks, months or even years later. Some courts have found that responses to online speech occurring well after the original post still amount to incitement to imminent lawless action when the poster’s intent is for someone to read their post and act immediately. If a post is read well after the original posting, other courts may apply different laws, such as negligent publication.

What is the difference between hate speech and incitement to imminent lawless action?

Hate speech is generally understood to be public speech that expresses hate toward a person or group based on a characteristic such as race, religion, sex or sexual orientation. There’s no legal definition of hate speech in the U.S. because it receives full First Amendment protection; by punishing or restricting hate speech, the government would be engaging in viewpoint discrimination.

Hate speech might, but does not always, involve incitement to imminent lawless action. It will depend on whether the speaker intends to motivate someone to react violently. If it does involve incitement, it loses First Amendment protection and may be punishable under the law.

Where does the incitement to imminent lawless action standard come from?

From 1919 to 1969, the government could restrict or punish speech that might lead others to engage in violence if it presented a “clear and present” danger to national security or, in some cases, if it had a “bad tendency” to cause harm.

These standards often allowed the government to prosecute speakers, particularly during wartime, who made “anti-American” statements or supported “anti-American” causes like communism. This sometimes occurred even if the speaker was simply seeking political change and when the speaker wasn’t even speaking directly to an assembled crowd. Examples include speakers who criticized the draft during World War I and the U.S.’ involvement in the war at all, such as by handing out and posting leaflets on these subjects.

This changed in 1969, when the Supreme Court issued a ruling in a case involving a Ku Klux Klan meeting (Brandenburg v. Ohio). Clarence Brandenburg was a Ku Klux Klan leader. He was convicted under an Ohio law that criminalized advocating crime or terrorism as a way of achieving political reform after he invited a television reporter to film a Klan meeting at which members burned a cross and made remarks, including:

“We're not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance taken.”

The Supreme Court overturned Brandenburg’s conviction, distinguishing between advocacy and incitement. In doing so, the court established the incitement to imminent lawless action test.

At the time, the court didn’t do much to explain what it meant by those words. But it added some gloss four years later, when it distinguished between advocating imminent action versus action at some indefinite time in the future (Hess v. Indiana, 1973).

How do courts determine when speech meets the incitement to imminent lawless action threshold?

In applying this test, context matters. A court will look at:

• The actual words the person uttered, including whether there is any clear mitigating language and whether there are multiple meanings or interpretations of the words.
• The context in which the words were spoken.
• The connection between the speaker’s words and any illegal action.

The bottom line on incitement and the First Amendment

The threshold for incitement to imminent lawless action is exceedingly high due to the protection given to free speech and assembly. Unless a speaker intends to incite imminent lawless action, that speaker will receive First Amendment protection.

Kevin Goldberg is a vice president and First Amendment expert at Freedom Forum. He can be reached at [email protected].