v. Ohio (1969)
v. Indiana (1973)
v. Paladin Press (1997)
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
the argument of Masses Publishing that the postmaster general's refusal
to allow the mailing of its "revolutionary journal" attacking
and the draft violated the First Amendment, Hand said that the
may prosecute words that are "triggers to action" but not words that
"keys of persuasion."
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
held that the First Amendment allows punishment only of subversive
calculated to produce "imminent lawless action" and which is likely to
produce such action. Thus, Brandenburg brings together
incitement test urged by Hand and the "clear and present danger" test
by Justices Holmes and Brandeis in their famous dissents in the
The Court applied its Brandenburg analysis four years later in Hess
v Indiana to reverse the conviction of a demonstrator who was
by a police officer to say, "We'll take the fucking street
The Court concluded that Hess's statement, taken in context, was not
at producing imminent lawless conduct but rather, at the most,
conduct at some indefinite future time.
The Court also
to find the Brandenburg test satisfied in NAACP v
Hardware (1982). The Court found First Amendment protection
the NAACP's practice of writing down names of blacks who violated a
of certain white businesses, and then reading them aloud at NAACP
The Court also found constitutional protection for the statement, "If
catch any of you going in any of them racist stores, we're going to
your damn neck." The Court said the statement fell short of a
threat or ratification of violence.
considered the First Amendment arguments of a publisher of a how-to
for hit men. Paladin's book, Hit Man: A Technical Manual for
Contractors, was concededly used by a reader as a guide for
the brutal contract killing of three persons. A panel of the
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
a State to forbid or proscribe advocacy of the use of force or of law
except where such advocacy is directed to inciting or producing
lawless action and is likely to incite or produce such action."
Controversial Websites Present Thorny First
Snapshot of http://international.thabaat.net/,
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).
[For link to a mirrored "Nuremberg Files"
page, on a server based in the Netherlands, click on: NF.
At the top of the page, read the note the motivation given by Karen
Spaink for mirroring the page--it's not the reason you might
think. What do you think of her arguments?]
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
the book at issue in Rice
v. Paladin Press
Wikipedia entry on
the "Hit Man" controversy
1. Would the
in Brandenburg be protected by the First Amendment if he had
"NOW is the time to take revengeance" instead of "It's possible that
may have to be taken"?
2. What if the
speaker had said "If the Supreme Court decides case XYZ against us,
we must assassinate all the justices that voted the wrong way"?
3. How should
"Mark Antony"-type speech be handled? (As you may know, Antony gave a
speech arousing Romans to kill Brutus for his participation in the
of Caesar, but did so without ever literally suggesting that they
murder--the suggestion was all between the lines.)
4. To be the
of a permissible prosecution under the First Amendment is it only
that there be an incitement to imminent lawless action, regardless of
minor may be the infraction involved? Can, for example, a
be prosecuted for urging people to "Go trespass" or "Jaywalk
5. What does
to you that members of the established press would lend their support
Paladin Press's First Amendment argument? Was this a triumph of
over common sense?
6. The full
text of Hit
Man is now posted on a website, accessible even by minors.
that a murder could be traced to a person who downloaded information
the Hit Man website, could a civil suit or even a criminal
be brought against the website author?
Supreme Court Strikes Down Ban on Animal Slasher
2010, the Supreme Court decided the case of United States v.
Stevens, raising the following question:
Is a federal statute that criminalizes the creation,
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
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.