Advocacy of Unlawful Action and the "Incitement Test"
The Issue:  When does the First Amendment allow the government to punish individuals for expression that may lead to unlawful conduct?
The Cases
Brandenburg v. Ohio (1969)
Hess v. Indiana (1973)
Rice v. Paladin Press (1997)


The first judicial suggestion that First Amendment protection should extend to subversive speech that falls short of inciting unlawful conduct can be traced to Learned Hand and his opinion in the 1917 case of Masses Publishing v Patten. Hand's decision was--at the time--a rare victory for the First Amendment. In upholding the argument of Masses Publishing that the postmaster general's refusal to allow the mailing of its "revolutionary journal" attacking capitalism and the draft violated the First Amendment, Hand said that the government may prosecute words that are "triggers to action" but not words that are "keys of persuasion."

The incitement test first urged by Learned Hand did not become part of the Supreme Court's First Amendment jurisprudence until 1969, in the per curium decision of Brandenburg v Ohio.  In reversing the conviction of a Ku Klux Klan leader who gave a speech warning "that there might have to be some revengeance taken" for "continued suppression of the white, Caucasian race," the Court held that the First Amendment allows punishment only of subversive advocacy calculated to produce "imminent lawless action" and which is likely to produce such action.  Thus, Brandenburg brings together the incitement test urged by Hand and the "clear and present danger" test urged by Justices Holmes and Brandeis in their famous dissents in the 20s.  The Court applied its Brandenburg analysis four years later in Hess v Indiana to reverse the conviction of a demonstrator who was overheard by a police officer to say, "We'll take the fucking street later."  The Court concluded that Hess's statement, taken in context, was not aimed at producing imminent lawless conduct but rather, at the most, lawless conduct at some indefinite future time. 

The Court also failed to find the Brandenburg test satisfied in NAACP v Clairborne Hardware (1982).  The Court found First Amendment protection for the NAACP's practice of writing down names of blacks who violated a boycott of certain white businesses, and then reading them aloud at NAACP meetings.  The Court also found constitutional protection for the statement, "If we catch any of you going in any of them racist stores, we're going to break your damn neck."  The Court said the statement fell short of a direct threat or ratification of violence.

Rice v Paladin Enterprises considered the First Amendment arguments of a publisher of a how-to guide for hit men.  Paladin's book, Hit Man: A Technical Manual for Independent Contractors, was concededly used by a reader as a guide for committing the brutal contract killing of three persons.  A panel of the Fourth Circuit Court of Appeals ruled unanimously in Rice that Brandenburg did not bar a jury from imposing civil liability on Paladin for aiding and abetting murder. The Fourth Circuit read Brandenburg not to require imminence for the type of speech involved in Rice.  In 1998, the Supreme Court denied cert in Rice.

The Incitement Test (Brandenburg)
"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."

Controversial Websites Present Thorny First Amendment Issues

Snapshot of,
a pro-Al qaeda website, as it appeared in June 2009

1.  A website called "The Nuremberg Files," a virulently anti-abortion website, featured such images as simulated blood dropping from fetuses.  It also provided the names and addresses of doctors in the United States who performed abortions.  Red lines crossed the names of a few doctors who had been killed by militant anti-abortionists and gray lined crossed the names of wounded doctors.  It is a federal crime to intimidate persons who provide reproductive health services.  Can the website operator be prosecuted under federal law?  Sued civilly by a doctor wounded by a website visitor? (In 2002, the 9th Circuit, voting 6 to 5, held the speech on the Nuremberg Files was not protected. (Planned Parenthood v American Coalition of Life Activists).

2.  The "Society for Advancement of Man-Boy Love" attracted attention after two men who kidnapped and sexually molested an 11-year-old boy were found to have kept a diary that indicated they turned to the "Man-Boy Love" website for psychological comfort.  The site posted pseudo-studies that purported to show that unforced sex between an adult and child can be a "positive" experience: "Man/boy love, far from dangerous to minors, can be quite healthy."  The site suggested that the "loving pedophile can provide companionship and security for a child and should be viewed by parents as a partner in the boy's upbringing, someone to be welcomed into the home."  Is this protected speech, given that the activity being described is illegal in all fifty states?  In Los Angeles, a pedophile was found to have turned to a website that listed good places to "observe children."  Protected speech?

Cover of Hit Man: A Technical Manual for Independent Contractors,
the book at issue in Rice v. Paladin Press

entry on the "Hit Man" controversy


1.  Would the KKK speaker in Brandenburg be protected by the First Amendment if he had said "NOW is the time to take revengeance" instead of "It's possible that revengeance may have to be taken"?
2.  What if the KKK speaker had said "If the Supreme Court decides case XYZ against us, then we must assassinate all the justices that voted the wrong way"?
3.  How should the "Mark Antony"-type speech be handled? (As you may know, Antony gave a famous speech arousing Romans to kill Brutus for his participation in the assassination of Caesar, but did so without ever literally suggesting that they commit murder--the suggestion was all between the lines.)
4.  To be the basis of a permissible prosecution under the First Amendment is it only necessary that there be an incitement to imminent lawless action, regardless of how minor may be the infraction involved?  Can, for example,  a demonstrator be prosecuted for urging people to "Go trespass" or "Jaywalk now!"? 
5.  What does it say to you that members of the established press would lend their support to Paladin Press's First Amendment argument?  Was this a triumph of ideology over common sense?
6.  The full text of Hit Man is now posted on a website, accessible even by minors.  Assuming that a murder could be traced to a person who downloaded information from the Hit Man website, could a civil suit or even a criminal prosecution be brought against the website author?

Supreme Court Strikes Down Ban on Animal Slasher Videos

In 2010, the Supreme Court decided the case of United States v. Stevens, raising the following question:

Is a federal statute that criminalizes the creation, sale, or possession of the depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain, with an exception for a depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value, 18 U.S.C. 48, unconstitutional in infringing free speech rights guaranteed by the First Amendment?

The government argued that the law only prohibited depictions of activity that is illegal.  The Court, however, voting 8 to 1 (Justice Alito dissenting), found the law unconstitutionally overbroad, suggesting that, as written, the law could be enforced against protected speech such as hunting videos.
The First Amendment and Aid to Terrorist Organizations
Holder v. Humanitarian Law Project (U.S. 2010)

In response to the terrorist bombings of the World Trade Center and the Pentagon on September 11, 2001, Congress passes a law which outlawed "knowingly providing material support or resources to a foreign terrorist organization."  "Material support or resources" was defined to mean any tangible or intangible service, training, expert advice, financial services, communications equipment, personnel, transportation, financial services--essentially any kind of help except for providing medicine or religious materials.

The Humanitarian Law Project (HLP) wished to assist "the Kurdistan Worker's Party" and the "Liberation Tigers of Tamil" (both organizations are included on the U.S. government's list of "foreign terrorist organizations").  Although both organizations were found by the government to have engaged in terrorist attacks, they also engaged in legitimate political activities and in humanitarian activities.  The HLP hoped to train the Kurdistan Worker's Party in methods of dispute resolution and in petitioning the United Nations.  The HLP also expressed a desire to engage in political activity on behalf of the Tamil Tigers.  The HLP challenged the federal statute, arguing that the support it planned to provide the two organizations was protected by the First Amendment.

The Supreme Court, on a 6 to 3 vote (with the five conservatives and Justice Stevens in the majority), rejected HLP's challenge to the law.  The Court found that the law was not unconstitutionally vague, and did not violate HLP's right of free speech or of expressive association.  The Court did allow for the possibility that government enforcement of the law against some forms of political advocacy on behalf of a listed terrorist organization might be unconstitutional as applied--but that could only be decided in a case with more developed facts.
Exploring Constitutional Conflicts Homepage