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"advocacy intended, and likely, to incite imminent lawless action, see Brandenburg v. Ohio, 395 U.S. 444 (1969);"

But doesn't the founding documents of the US enshrine the right of the people to overthrow a government when it no longer serves their democratic ends?

Are these two doctrines not at severe conflict? Is Revolution not intrinsically lawless action? For that matter how are offences like treason and conspiracy to overthrow the government or defying lawful authorities reconciled with this founding doctrine?

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  • 5
    Which part of the Constitution of the United States "enshrines the right of the people to overthrow a government when it no longer serves their democratic ends"?
    – Lag
    Jul 8, 2022 at 8:38
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    See also 18 USC Sections 2381, 2382, 2383, 2384, 2385. Treason, Sedition, and Subversive Activities.
    – JosephCorrectEnglishPronouns
    Jul 8, 2022 at 9:34
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    The Declaration of Independence isn't law.
    – Lag
    Jul 8, 2022 at 9:49
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    If a group is able to overthrow or successfully secede from a government, that government's laws would be irrelevant anyway.
    – IllusiveBrian
    Jul 8, 2022 at 11:54
  • 3
    The victor in a war, writes the law.
    – Trish
    Jul 8, 2022 at 12:43

2 Answers 2

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How can incitement of imminent lawless action not be constitutionally protected?

The short answer to your question is "because the Supreme Court of the United States said so."

In Brandenburg v. Ohio SCOTUS found that the Constitution protects speech that calls for lawless action in the abstract but does not protect speech "directed to inciting or producing imminent lawless action and is likely to incite or produce such action".

The court's per curiam opinion seems to treat the decision as self-evident - it's quite short after discussing the facts of the case.

However, Justice William O. Douglas wrote a concurring opinion (his "caveat") that discussed and was critical of previous decisions in such cases, including the use of the 'clear and present danger test', so his opinion is useful for a brief history of First Amendment judgments to that point (Brandenburg).

The Declaration of Independence is not law. Following "a history of repeated injuries and usurpations" and failures to reach political settlements it asserts a moral right to overthrow the tyranny of the British crown. It alludes to rights, it does not "enshrine" or create a legal right that the judiciary can interpret. Judges might refer to the Declaration in their judgments, not using it as legal authority but an articulation of fundamental values.

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  • Well yes exactly. As you say, it is not law, but it is legally significant. I suppose the actual answer lies in the allowance of advocacy of deferred or nonspecific lawless action in the abstract, so I suppose they Thomas Paine's pamphlets would have been allowed under the first amendment but not shouting amidst a riotous mob around the Kenosha police station to rally everyone to charge inside "go go go go go!!!"
    – JosephCorrectEnglishPronouns
    Jul 8, 2022 at 14:06
  • Is that about right?
    – JosephCorrectEnglishPronouns
    Jul 8, 2022 at 14:06
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    @JosephP. I think so. Well, more pedantically, I think post-Brandenburg SCOTUS would find that such pamphlets were protected by the Constitution but pre-Brandenburg SCOTUS might disagree. That was the motif of Justice Douglas's complaint. But note there have been modern Supreme Court justices that have dissented from protecting 'radical' speech or other forms of expression such as flag burning.
    – Lag
    Jul 8, 2022 at 14:39
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    +1 for mentioning that the Declaration of Independence has no force of Law. It should be pointed out though that there are a number of writings from Constitutional Framers that address the Second Amendment enshrined a right to defend one's life, liberty, property, and pursuit of happiness, however, it does not enshrine a right to rebel or violently overthrow the government so long as there are democratic means to do so. It's not the speediest process, and that's a feature, not a bug, of the U.S. Government.
    – hszmv
    Jul 8, 2022 at 14:52
  • "Because the Supreme Court said so" seems like a classic example of an unhelpful answer.
    – bdb484
    Jul 28, 2022 at 14:43
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Revolution is not "intrinsically lawless action," so it is not necessarily illegal to "overthrow a government." Indeed, the U.S. Constitution provides democratic means by which the people can do just that.

As your comment noted, the Declaration of Independence says the people may "alter or abolish" the government. So if you are advocating to overthrow the government by voting in a new party or government, or if you are advocating to amend or even repeal the Constitution, you are not advocating a violation of the law, and your speech therefore remains protected.

But there is no law that says you may establish a new government through violent force or coercion. So if you are advocating to assassinate a government official or interfere with the peaceful transfer of power, you are advocating a violation of the law, and your speech may no longer be protected.

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