Incitement: Modernizing the standard

With civil and criminal proceedings under way in the aftermath of the Jan. 6 insurrection at the U.S. Capitol, one thing is clear: Allegations of incitement will be hard to sustain unless the Supreme Court modernizes its rulings on the issue. 

The Court ruled in the 1969 case of Brandenburg v. Ohio that speech is constitutionally protected except where it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” That decision has grown increasingly problematic as the modes, channels and consequences of modern communication have changed fundamentally the context to which it is being applied. The Court struggled admirably to enhance freedom of speech, with Justices Douglas and Black rejecting the “clear and present danger” doctrine framed earlier by Justice Holmes. Yet Holmes’ underlying metaphor lingers: Who can claim the right to shout fire in a crowded theater? 

To raise that question today, no less than when Holmes propounded it a century ago, is to signal that an absolutist interpretation of the right to free speech – toward which Brandenburg veers – is dubious. In reaching its position on incitement, the court could not have known that the theater of Holmes’ imagination would become a global one with vast audiences far outside a speaker’s immediate presence. In this worldwide arena of constant communication, the risk of provoking violence from some individuals and groups has become heightened and protracted. The “imminent” and “likely” criteria do not cover the novel probabilities. 

The challenge of framing a sustainable constitutional balance to govern speech and assembly has grown excruciating in the years since the Court spoke. It arises in many forms and settings, notably in the efforts of social media platforms to maximize open communication without spreading inflammatory messages. That task – shaping a viable balance – rests primarily with the courts, not private entities. A crowded society faces difficult tradeoffs between unfettered speech and the need to constrain violent behavior.

A key test for judging behavior weighs both subjective and objective factors, intention and consequences. Seeking clarity on intention is akin to mind reading. Gauging intention is not enough. In a worldwide theater with combustible materials in many corners, elements of negligence and “reckless disregard” are also relevant. What needs to be assessed is whether a communicator should have known the risks of his language in the situation in which they were expressed. Judge Learned Hand, attempting to refine Holmes’ doctrine, tried to reset the issue as a calculation of probable versus improbable effects. This frame can help us: Even if overt intent is absent, the burden arises to calculate the danger that one or more of those listening could be triggered to unlawful conduct.

One need not assume that someone shouting fire in a crowded theater intends for people to die in a mad crush at the exits. It is reasonable to assume that the shouter must take account of the likelihood that some people will suffer bodily harm or that social order will be disrupted because of a reckless outburst.               

In the public arena, especially in the competition for and holding of public office, there must surely be an obligation for speakers to refrain from statements provoking one or many of their listeners to break the peace. That expectation does not impede vigorous exercise of the right to free speech. It should, however, give pause to anyone tempted to stoke violent passions in the audience.

The infrequency of prosecutions under incitement laws testifies to enduring respect for the fundamental right to free speech. Under Brandenburg, however, that tolerance has increased substantially the tendency of ambitious politicians or commentators to exhort audience responses beyond civilized norms. 

To curb that habit, courts need to modernize the Brandenburg standard. Doing so could begin with simple recognition that speakers are responsible for the reasonably anticipated effects they generate. That responsibility involves more than explicit intention. It should include a calculation by the speaker of the risk that others may act in reckless, illegal or violent ways. 

The Supreme Court’s current guidance has inhibited lower courts from exploring this more complicated balancing test. When several protesters were roughed up at a 2016 rally after Trump urged the crowd to “get’em out of here,” U. S. District Judge David Hale found a plausible claim that candidate Trump had incited a riot. On appeal, however, the Sixth Circuit Court applied Brandenburg to reverse the Hale decision. 

Similarly, prosecutors in North Carolina concluded that Supreme Court law precluded charging Trump with incitement — even though a supporter had slugged a protestor in the face as he was being removed from a rally at Trump’s direction. That episode followed earlier promises by Trump to pay legal fees for any supporters who were charged with illegal actions against protesters… promises on which he soon reneged but which themselves could be judged as invitations to use force against opponents. The inability to sustain prosecutions or successful civil claims rests on the outmoded criteria established in Brandenburg.

In current circumstances both political rallies and mass media offer few cautions to rabble-rousers. They may well foment mobs in the immediate situation or mobilize them over extended periods and distances, as Trump did in the months leading up to and following the 2020 election. Modernizing judicial guidance on incitement could encourage greater self-discipline in bully pulpits and offer more leeway for civil action where objective harm to plaintiffs should figure heavily.  

In analyzing complex decisions, it seems presumptuous to tell the Supreme Court that they got one wrong, although lawyers do that all the time. A gentler admonition is appropriate here, encouraging the Court to fine-tune its posture on incitement. Key to that refinement can be the distinction between a citizen’s intention and an obligatory calculation of the risk that inflammatory language in a particular context will provoke others to acts that go well beyond that intention.   

Victims of the January insurrection presumably have standing to pursue legal recourse. As Sen. Mitch McConnell (R-Ky.) emphasized, further judicial measures are available and appropriate. Prosecution of Trump himself could carry the issue back to court, although other cases may offer the Court less provocative occasions to revisit the topic. Especially blatant was the role of provocateur Rudolf Giuliani. When he spurred the crowd to march on the Capitol for “trial by combat,” he extinguished the embers of a once-distinguished reputation. No matter how the issue reaches the Supreme Court and whether or not the former president’s misconduct is the focal point, the problem of incitement is ripe for clarification.

Prior restraint of speech is a power wisely denied government by the Constitution. Yet incendiary language in settings where violence or other illegal actions may erupt is a civic sin that jeopardizes the very freedom it exercises. The perpetual task of balancing personal freedom and public order depends on individual responsibility for a degree of self-restraint. John Milton spoke that truth centuries ago when he wrote, “licence they mean when they cry liberty, for who loves that must first be wise and good.”

Alton Frye is the Presidential Senior Fellow Emeritus of the Council on Foreign Relations.