Incitement to Imminent Lawless Action

May 12, 2008

In 1969, the U.S. Supreme Court ruled in Brandenburg v. Ohio 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.”

In its 1973 ruling Hess v. Indiana, the Supreme Court clarified what constitutes imminent lawless action. The Supreme Court said that the speech involved in Hess, “was not directed to any person or group of persons” therefore “it cannot be said that [the speaker] was advocating, in the normal sense, any action.” The Court also said that “since there was no evidence, or rational inference from the import of the language, that [the speaker’s] words were intended to produce, and likely to produce, imminent disorder, those words could not be punished by the State on the ground that they had a ‘tendency to lead to violence.’”

The Supreme Court has said that for speech to lose First Amendment protection, it must be directed at a specific person or group and it must be a direct call to commit immediate lawless action. The time element is critical. The Court wrote that “advocacy of illegal action at some indefinite future time … is not sufficient to permit the State to punish Hess' speech.” In addition, there must be an expectation that the speech will in fact lead to lawless action.