The phrase comes from Brandenburg v. Ohio, 395 U.S. 444 (1969). It is correct that "incitement to imminent lawless action" can be an exception to the protections of the First Amendment when the incitement is likely to be successful. But I think that both the question and the answer by bdb484 are incorrect in assuming that "lawless action" means "any violation of any law". Let us look at the paragraph where this phrase was first used in that opinion (at 395 U. S. 447)
The Ohio Criminal Syndicalism Statute was enacted in 1919. From 1917 to 1920, identical or quite similar laws were adopted by 20 States and two territories. {E. Dowell, A History of Criminal Syndicalism Legislation in the United States 21 (1939)} In 1927, this Court sustained the constitutionality of California's Criminal Syndicalism Act, Cal.Penal Code §§ 11400-11402, the text of which is quite similar to that of the laws of Ohio. Whitney v. California, 274 U. S. 357 (1927). The Court upheld the statute on the ground that, without more, "advocating" violent means to effect political and economic change involves such danger to the security of the State that the State may outlaw it. Cf. Fiske v. Kansas, 274 U. S. 380 (1927). But Whitney has been thoroughly discredited by later decisions. See Dennis v. United States, 341 U. S. 494, at 341 U. S. 507 (1951). These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. {Footnote 2} As we said in Noto v. United States, 367 U. S. 290, 367 U. S. 297-298 (1961):
the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence is not the same as preparing a group for violent action and steeling it to such action."
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Measured by this test, Ohio's Criminal Syndicalism Act cannot be sustained. The Act punishes persons who "advocate or teach the duty, necessity, or propriety" of violence "as a means of accomplishing industrial or political reform"; or who publish or circulate or display any book or paper containing such advocacy; or who "justify" the commission of violent acts "with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism"; or who "voluntarily assemble" with a group formed "to teach or advocate the doctrines of criminal syndicalism.
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{Footnote 2}
It was on the theory that the Smith Act, 54 Stat. 670, 18 U.S.C. § 35, embodied such a principle and that it had been applied only in conformity with it that this Court sustained the Act's constitutionality. Dennis v. United States, 341 U. S. 494 (1951). That this was the basis for Dennis was emphasized in Yates v. United States, 354 U. S. 298, 354 U. S. 320-324 (1957), in which the Court overturned convictions for advocacy of the forcible overthrow of the Government under the Smith Act, because the trial judge's instructions had allowed conviction for mere advocacy, unrelated to its tendency to produce forcible action.
Note the repeated equation or association of "lawless action" with "violent means", "a resort to force and violence", "violent action", "violence ", and "forcible overthrow of the Government". All the cases cites, as well as the actual case at issue in Brandenberg, involved people accused of advocating immediate or eventual violence or revolution. None of them dealt with peaceful civil disobedience, or the advocacy of minor lawbreaking. As such, any expression that incitement to civil disobedience could be made illegal without violating First Amendment would be at best obiter dictum But there is no such expression.
Thus I think that by "lawless action" the Brandenberg Court meant significant violence, such as rioting or attempted insurrection, not minor lawbreaking or civil disobedience,
Note that Your Dictionary gives as meanings of "lawless":
- Unrestrained by law; unruly. : A lawless mob.
- Contrary to the law; unlawful. : The lawless slaughter of protected species.
- Not governed by law. : The lawless frontier.
- Without law; not regulated by the authority of law. : A lawless city.
- Not obeying the law; unruly; disorderly.
Macmillan gives:
- not willing to obey the law, especially by using violence : a lawless mob
- a lawless place, period of time, or society has no laws or has laws that no one obeys : a lawless frontier town
All of these meanings suggest violence, serious breaking of the law, or a total absence of any law. They do not seem to refer to mere minor lawbreaking.
Note also that the Brandenberg decision did not make incitement illegal. It merely said that when a law prohibits incitement to imminent lawless action, that law does not violate the right to free expression. But Congress or a State Legislature must still pass such a law. As far as I know no law criminalizing incitement to peaceful civil disobedience or minor lawbreaking is currently in force.
One should remember that Brandenberg was not a case that authorized legal action against a speaker. Instead it overturned the conviction of a person who clearly was advocating illegal violence because the law went too far.
Any law prohibiting advocacy of civil disobedience would be a law regulating speech by content, and as such would be subject to strict scrutiny. This means that to sustain a conviction under such a law the government must demonstrate in court that the law or regulation is essential to achieve a "compelling state interest". The government must also show that the law is "narrowly tailored" to achieve the compelling purpose, and uses the "least restrictive means" to achieve the purpose.
I doubt that any law purporting to punish incitement to peaceful civil disobedience, or applied to do so, would pass this test.
History
One should also remember the history of laws like the one at issue in Brandenberg and of the line of court decisions behind Brandenberg. Early cases were from the WWI era, in which anti-war activists urged men to refuse draft induction, They were prosecuted under the Espionage Act, for obstructing recruitment and inciting those already recruited to mutiny. Later laws were aimed at labor organizations considered by their opponents as "too radical", particularly the IWW (called "Wobblies", by some). Still later such laws were primarily aimed at Socialists and Communists, and at others considered "violent extremists". The man convicted in the Brandenberg was an organizer for the Klu Klux Klan, speaking at a meeting of that organization.
Other Crimes Carried Out by Speech
It should be noted that Brandenberg did not address laws which punish more ordinary sorts of crime that involve speech or expression. For example, one who commits fraud will normally do so by speech or writing, since the essence of fraud is a false statement. US law has never held that common-law fraud is protected by the First Amendment. Mail Fraud and Wire Fraud always involve written communication or speech, and that does not protect those accused of such crimes. Conspiracy requires joint action by conspirators, which is often accomplished by speech. Such speech is not protected by the First Amendment. Directly advising or urging a specific person to commit a specific crime may make one an accessory, and the First Amendment will not protected an alleged accessory. Note that in all these cases the underlying conduct is itself criminal, and the speech or writing is merely a means to the criminal end, while in civil disobedience cases (or indeed incitement to riot cases) the message being communicated is the essential point, and any laws in such cases must take account of First Amendment limits.
Conclusion
The Brandenberg decision does not "restrict the advocacy of all unlawful behaviour even if that behavior was simply the breaking of minor laws in an effort to engage in civil disobedience".
This is because:
- In Brandenberg "lawless action" almost surely meant violence, particularly riot or insurrection, not minor lawbreaking.
- Brandenberg did not "restrict " anything, it only gave the conditions in which a restriction passed by Congress or a state legislature might stand. No such restrictions of incitement to Civil Disobedience are now in force.
- A law prohibiting incitement to Civil Disobedience would not pass strict scrutiny.