It's probably going to be bit transparent what inspired this question, but assume someone gives a long speech in which he declares that an entity is doing terrible things and then urges everyone listening to go to the entity's specific location, but the speech doesn't otherwise contain any overt calls for breaking the law.

Is there some US case law on incitement that has rendered a guilty verdict in a situation like that? Or at least case law where someone was (actually) charged under similar circumstances, but the verdict was "not guilty" or even the case was dismissed early?

There's fairly related q here, but it doesn't specifically ask for case law, nor do the answers provide any--they just quote the statutes and their own interpretation thereof. Brandenburg v. Ohio (mentioned there) seems somewhat relevant here, but its general test

Advocacy of force or criminal activity does not receive First Amendment protections if (1) the advocacy is directed to inciting or producing imminent lawless action, and (2) is likely to incite or produce such action.

doesn't seem incredibly illuminating here; is riling up someone and directing them to a specific location "inciting or producing imminent lawless action" if the persons who go there do actually engage in lawless action (even if the speech doesn't explicitly call for it)? I think some actual case law on incitement may be more illuminating here.

I actually found a discussion of "oblique" aka "indirect incitement" in a paper on English law, which is illustrated (inter alia) with this hypotehtical example:

The second example is drawn from Mill’s essay, On Liberty. The passage, though occasionally mentioned in commentaries on the essay, has received little detailed consideration, least of all from a legal point of view:

No one pretends that actions should be as free as opinions. On the contrary, even opinions lose their immunity when the circumstances in which they are expressed are such as to constitute their expression a positive instigation to some mischievous act. An opinion that corn dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn dealer, or when handed about among the same mob in the form of a placard.

But are were there any actual cases like this in US jurisprudence?

1 Answer 1


The Brandenburg Test

This is not a "general test" - it's the test that applies. The prosecution must prove beyond reasonable doubt that:

  1. The speech is “directed to inciting or producing imminent lawless action,” AND
  2. The speech is “likely to incite or produce such action.”

The first goes to mens rea; that the person intended by their speech to incite lawless action. This is a matter of fact based on conduct before, during and after the speech act. That is, intention can be established by what the speaker said and did before they spoke, while they were speaking and after their speech concluded.

The second is based on the speech act itself. Here we have no precedent as to whether the incitement must be explicit (Lady McBeth or Iago) or implicit (Marc Antony):

Hence, since Brandenburg, the Court has not elaborated on whether words of incitement are a necessary condition for conviction or if, absent words of incitement, a defendant has a First Amendment defense as a matter of law. We are left only with the Court's language in Brandenburg to try to divine whether words of incitement are in fact a necessary condition for conviction.

The text is ambiguous. The Court stated that the First Amendment protects a speaker unless the speaker's advocacy is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Professor Gunther's position, that Brandenburg adopts Judge Hand's view, is supported by its self-conscious use of the term "inciting," suggesting that words of incitement are a necessary condition. No doubt, the Court was aware of Judge Hand's use of that term. But, of course, the Court did not state explicitly that a speaker has a First Amendment defense. Rather, it used an additional term, advocacy directed to "producing" the imminent criminal conduct. Arguably, unless the "producing" language was merely surplusage, the Court recognized that language not explicitly inciting lawless conduct may nonetheless be sufficiently dangerous that it should be criminalized.

  • 3
    Ok, but was anyone convicted of "oblique/indirect incitement" (in the sense defined in my q) since the Brandenburg test was adopted? It's basically what I'm asking. More/mere opinions on the meaning of the Brandenburg test don't help... even if coming from illustrious scholars. Commented Jan 13, 2021 at 6:42
  • That paper is somewhat useful as it also points to Claiborne as a later case, but in Claiborne, the violent events occurred at somewhat distant dates, so it's not clear if an event immediately occurring after a speech would be considered connected or not... Commented Jan 13, 2021 at 6:58
  • Also in Rice v Paladin Enterprises the author of a "how to" manual for hitmen was convicted (in a civil suit) of "aiding and abetting murder" when someone else who read his book used the advice to kill 3 people. SCOTUS denied certiorari. This is not technically a case of incitement though, although the advice was explicit (but not directed at a specific person). Commented Jan 13, 2021 at 7:30
  • Another interesting "workaround" Brandenburg was to identify the speech as a true threat, as was done by the Ninth Circuit (reversing a Panel decision) in the ACLA posters case core.ac.uk/download/pdf/303930345.pdf ; mtsu.edu/first-amendment/article/706/… The court there relied on the fact that similar "speech" acts before had resulted in violence. (SCOTUS denied certiorari twice) Commented Jan 13, 2021 at 7:56

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