The Daily Stormer publisher Andrew Anglin claims:

You could literally do a “why we must exterminate the Jews” flier and it wouldn’t violate any criminal statutes.

This is the United States of America and we have a little thing call THE CONSTITUTION.

The story links to this wiki page which states:

Brandenburg v. Ohio, 395 U.S. 444 (1969), was a landmark United States Supreme Court case based on the First Amendment to the U.S. Constitution. The Court held that government cannot punish inflammatory speech unless that speech is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action".

Does that mean saying exterminate all [name of a race or religion] is acceptable according to the US constitution?

2 Answers 2


The First Amendment does indeed guarantee the freedom to express any idea or viewpoint, the limitation being incitement to immediate lawless action, recently reaffirmed in Snyder v. Phelps (many free speech cases have been about criminal restrictions on speech, this applied even to a suit for intentional infliction of emotional distress).

There isn't a clear line that distinguishes "advocating violation of the law" and "inciting to immediate lawlessness". Saying "(You should) shoot The Man whenever you see him" would be protected expression, but "There's a cop, somebody kill him" would be incitement. It also has to be a "credible" incitement, so saying "Kill him now!" to a room full of pacifist nuns would not constitute incitement. Things said to an angry mob would be more along the lines of incitement.

  • Could you add some more details with examples of what is defined as a lawless action? Commented Mar 30, 2017 at 17:08

As long as someone doesn't incite violence, or ask someone else to commit crimes or incite violence, then yes. A person can state that they think (as you put it) 'All [name of a race or religion] should be exterminated.'

Just don't invite them to actually take any action and they won't be 'punished.'

It's not against the law to be racist or hate someone or a group of persons in the US. It's only against the law to act on that racism or hate or entice others to act.

  • Isn't exterminate all X inciting the general population to commit violence against X? Commented Mar 30, 2017 at 17:20
  • 2
    @MohammadSakibArifin there is a difference between saying "do X" and saying "we should do X" or listing "reasons why we must do X."
    – phoog
    Commented Mar 30, 2017 at 17:50

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