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How Far Does the First Amendment Go to Protect Violent Speech?

First Amendment and US Constitution text with legal gavel
By Laura Temme, Esq. on January 14, 2021 1:22 PM

The images of a mob of insurrectionists breaking into the United States Capitol building on January 6 are the type that won't be forgotten any time soon. But what about the words, including those from the president himself, that came before the riot? In the U.S., we enjoy broader freedom of speech than many, but where do we draw the line?

Historically, the Supreme Court has dealt with restrictions on speech very carefully. However, there are instances where speech that incites violence can be punished. Two of the most prominent cases on the subject, Dennis v. United States and Brandenburg v. Ohio, were decided by the Court in the mid-20th century.

The Smith Act

In 1940, Congress passed the Smith Act, which made it illegal to "advocate, abet, advise, or teach" the overthrow or destruction of the United States government. At the time, it primarily targeted communist and socialist leaders. Eight years later, eleven leaders of the Communist Party were convicted of violating the Smith Act.

Their case, Dennis v. United States, reached the nation's highest court in 1951. The Supreme Court held that the Smith Act did not "inherently" infringe on free speech. The court saw a difference between the teaching of communist ideas and the active advocacy of those ideas - which they saw as a "clear and present danger" to the U.S. government. Therefore, they saw the Smith Act's restriction on speech as justified.

The Brandenburg Test

The Supreme Court's landmark decision in this area came in 1969 with Brandenburg v. OhioClarence Brandenburg was a Ku Klux Klan leader in rural Ohio in the mid-1960s, charged with advocating violence under a state statute that prohibited advocating "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform."

Brandenburg sued, claiming the charge violated his First Amendment right to free speech. When his case reached the Supreme Court, the justices unanimously agreed that the Ohio statute did violate free speech. However, they also believed there were instances where inciting speech might go beyond First Amendment protections. So, they came up with a standard, now called the Brandenburg test, to establish a threshold.

The court held that speech can be prohibited if it is:

  1. Directed at inciting or producing imminent lawless action, and
  2. Is likely to incite or produce such action.

The Brandenburg decision still stands as an essential test for curbing speech that incites violence. But we might see another case reach the Supreme Court in the next year as more and more people are arrested for their actions on January 6. Who knows, the case might even carry the name, Donald J. Trump.

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