Is civil disobedience advocacy protected by the "imminent lawless action" test?

Question

It is well known that speech is protected in the US unless it is both intended to cause imminent lawless action and likely to bring about/cause imminent lawless action.

My issue is that by this standard, it would seem that the advocacy of civil disobedience, by any politician to a crowd, that immediately leads to civil disobedience, should be declared unlawful speech. This can easily be concluded if we suppose that the civil disobedience is unlawful in nature which is often the case. As an example of unlawful civil disobedience, thousands of protestors blocking the streets so that cars cannot pass in an effort to raise awareness for their cause is surely both unlawful and civil disobedience? Similarly, if a legal mandate for mask-wearing has been put in place, it would seem reasonable to categorize a large group of people who gather in a public area, remove their masks and then stroll through the streets with signs and slogans delineating their cause, as civil disobedience.

In both the examples above, we have large groups of people engaging in unlawful action (unlawful civil disobedience). We now imagine a politician or leader advocating for the unlawful civil disobedience to these aforementioned crowds, and immediately after the politician's advocacy, the unlawful action takes place when the crowds engage in the unlawful civil disobedience. Surely in these two cases it can be said that the advocacy was both intended to create and likely to cause imminent lawless action? If so, then it would seem that that the imminent-lawless-action test seems to restrict the advocacy of any unlawful civil disobedience by any leader or politician. This restriction doesn't seem to exist in reality though as we see influencers and leaders frequently call for unlawful civil disobedience.

Is my interpretation of the test correct? Does it really 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 so that one may bring about change in much more major laws?

Answer 1

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:

1. In Brandenberg "lawless action" almost surely meant violence, particularly riot or insurrection, not minor lawbreaking.
2. 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.
3. A law prohibiting incitement to Civil Disobedience would not pass strict scrutiny.

Answer 2

The exception to First Amendment protection for free speech you're thinking of is for "incitement," rather than for "imminent lawless action," which is merely a component of the exception.

Under that exception, speech advocating the violation of the law is unprotected if it is (1) intended to cause imminent lawless action; and (2) likely to actually result in imminent lawless action. Brandenburg v. Ohio, 395 U.S. 444, (1969).

This means you could write a book encouraging people to take up arms and storm the Capitol, and it would likely be protected by the First Amendment because publishing it isn't likely to result in an immediate invasion. But if you were at a rally saying the same thing and telling people to go storm the White House "now," you're probably on the hook for incitement.

The outcome changes not based on the character of the lawless action being advocated; instead, the question is whether the speech is intended to and likely to result in an immediate violation of the law.

So the same is true when you're advocating breaking the law through civil disobedience. Martin Luther King Jr. can write a letter encouraging his followers to "disobey segregation ordinances," but it isn't illegal because it isn't likely to result in immediate violations of those ordinances. But if he handed Rosa Parks a dime as she was boarding the bus and told her "don't move for anyone," he's going to be liable for that encouragement.

Applied to your examples, then, the answer seems to be that yes, the politicians could be punished for their advocacy without offending the First Amendment. There could be questions about whether the politician truly intended for his audience to do what he said, or whether the audience's compliance was foreseeable, but there's no reason to a think a court couldn't find that both criteria were satisfied.

But that does not mean, as you suggested, that the incitement exception can be used to "restrict the advocacy of any unlawful civil disobedience by any leader or politician." The easiest way to cloak such advocacy in First Amendment protection is probably to crank up the abstractness of the speech; rather than "Take off your masks," you can say "We shouldn't be wearing masks" or "The right thing to do is to stop wearing these masks."