[vueko]

> There's a MASSIVE and obvious 1st amendment issue here, but in the sense of "Incitement to murder isn't covered under the 1st amendment" sense.

It's not as clear-cut as you make it sound, and that's why the Brandenburg test is such an important concept: https://www.law.cornell.edu/wex/brandenburg_test

> The test determined that the government may prohibit speech advocating the use of force or crime if the speech satisfies both elements of the two-part test:

> The speech is “directed to inciting or producing imminent lawless action,” AND The speech is “likely to incite or produce such action.”

Imminent is the keyword there. Saying "let's go kill that CEO" at the head of a mob outside their home isn't protected, as it passes the test - it is genuinely likely to result in the mob storming the house, as the mob is positioned to be able to do so as an immediate reaction to the speech telling them to, and the speaker knows it.

In contrast, consider some of the speech found to be protected by this standard:

> a KKK leader gave a speech at a rally to his fellow Klansmen, and after listing a number of derogatory racial slurs, he then said that “it's possible that there might have to be some vengeance [sic] taken.”

> In NAACP v. Claiborne Hardware Co . (1982), Charles Evers threatened violence against those who refused to boycott white businesses. The Supreme Court applied the Brandenburg test and found that the speech was protected : “Strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases. An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech.”

Advocating violence in the abstract doesn't satisfy the imminence requirement. Unless there's a direct connection in time and place between the speaker and the lawless actor, it's protected.

[Amezarak]

Thank you for this great post. I've noticed over time people seem to be absorbing notions of the limits of the 1A that just aren't true; I think a lot of it is stories exactly like this. The longer that goes on, and the more widespread, the more likely in the future 1A protections will be weakened - because everyone will assume "oh, that was illegal anyway" or "wow, that's not illegal? seems like common sense it should be."

A separate, but related issue is people assuming "free speech" and the First Amendment are equal; that you have "free speech" as long as you have a First Amendment, and only that. But obviously, a society where you can be totally ostracized from all markets and common society on the basis of your speech is not a free society, even if the government doesn't put you in jail. To live in a free society and to have free speech doesn't mean only the government tolerates speech, it extends to us.

[EA-3167]

If that KKK leader then handed out a list of people a list of people to kill, I suspect it would be a VERY different situation than vague and non-specific talk of vengeance. Specifying targets, especially in the wake of a highly publicized assassination, is not abstract.

Adding in what Idlewords posted below:

"The guy also posted "the CEO must die" to his Instagram."

Provisioning a hit-list in the context of a call to murder the people described isn't abstract or vague either. At best it's a terroristic threat.

[vueko]

I don't think that it being a specific list makes any difference, because the lawless action theoretically incited by this speech is still not imminent; it's abstract in the sense that there's not a direct link between the actor and the speaker. The guy making these cards doesn't know that someone will see them and choose go kill the named CEO. It's possible, sure, but that's not the standard (and if it was, saying something like "Trump is a threat to democracy" would be incitement - it's naming a specific individual target, and it's entirely possible some deranged individual would take that statement as an instruction to carry out an assassination). The Brandenburg test requires that the speaker hold specific knowledge that their speech will result in lawless action; merely knowing that it is possible that the speech inspires lawless action isn't enough. If the guy were handing the cards out to a squad of hitmen, then that wouldn't be protected - such an act would be specific instruction to commit lawless action, not just inspiration as we see here.

And actually, regarding the Brandenburg case itself, this is what was said:

> We're not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance taken.

So, actually, the speech was specifically directed against a named group of individuals - "our President, our Congress, our Supreme Court" - but is still protected because of the lack of imminence. I'll note that there is a distinction between "the President should be killed" and "I will kill the President" - the latter is a true threat, the former is not.

As the ruling says: "the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence is not the same as preparing a group for violent action and steeling it to such action."