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Introduction

The United States is an outlier when it comes to the protection of free


speech; the First Amendments language is uniquely unequivocal. Other
countries constitutions have limitations on free speech:
o China recognizes free speech exists and it is conditioned on things
that can trump free speech interests
o The European Convention on Human Rights lists an entire set of
circumstances in which free speech rights can be curtailed
o Germany is concerned about rights and reputations
We protect the following more than any other country:
o Pre-trial publicity
o Unlawfully obtained information (it can be published)
o Commercial advertising
o Libel and defamation
o Hate speech regulation (ex: in Germany its a crime to buy Nazi
paraphernalia)
Our 1A baffles other countries
CB 3-10: INCITEMENT
Ex: Abortionists are Murderers (pg. 4)
Facts: John Doe says abortionists are murders and its our responsibility to
protect the unborn. Mary Moe hears this and kills a doctor a month later.
The statute says, Any person who counsels the commission of a criminal
act shall be liable to the same extent as the person who actually commits
the act. Is the prosecution of John Doe constitutional permissible?
No, John Does fine. It is not enough to have an abstract suggestion
of violence. See Brandenburg v. Ohio except where such advocacy is
directed to inciting or producing imminent law less action and is likely to
incite or produce such action
It would be different if John Doe was speaking to a group of armed people
in front of an abortion clinic
What is the significance that Mary Moe didnt commit this crime until 30
days later?
o Words can be an incitement even if the harm doesnt occur directly
after (or ever). It doesnt matter what it happened or when it
happened. All that matters is when you spoke your words, was it
likely that there would be imminent lawless action and was it likely?
You would never get to a jury with this statute because it is overly broad.
You need a statute that only covers what Brandenburg addresses. The
holding of Brandenburg was not that Brandenburgs speech failed to
satisfy the requirements of imminence, likelihood, etc. It was that the
statue was written too broadly and wasnt written only to cover imminent
law less action

Incitement prosecutions are really rare because its hard to satisfy all of
the Brandenburg requirements
In the U.S., you can engage people to take lawless action and intend for
them to take lawless action so long as it is not imminent
Vagueness doesnt protect you if the Brandenburg elements are met.
There are no magic words in the 1A and no magic words in the incitement
context. Even a vague statement (You know what to do) could constitute
incitement if said to an armed, angry mob immediately after a speaker
said that a particular person nearby should be killed

Ex: Cop Killer (pg. 4)


Facts: Radio DJ plays a song about killing the police; someone gets pulled
over and could kill a cop.
Think about the intent of the Radio DJ. If the DJ didnt intend these
consequences, hes in the clear (didnt intent imminent lawless behavior)
Mere knowledge is not enough. You must have the actual subjective
intent of instigating people to imminent lawless behavior.
Do you look at everyones response to that song or just this guy that
attacked the police? Theres no post-Brandenburg case where the Court
has addressed this. This highlights how rarely prosecutors bring these
cases.
In other countries, having the intent alone is enough, even without
imminence and likelihood. But not in the U.S.
Policy Question: What limits should there be and on what basis should
they exist? Thats not the way we ask the question in this country
United States v. Williams (SCOTUS 2008)
Brandenburg doesnt mean you get to walk up to a hit man and say
please kill my spouse, hit man kills the spouse, and then say free speech
protects me. No, youre now engaged in a criminal conspiracy
Brandenburg doesnt stop true solicitation for a crime. But, in
Brandenburg, Brandenburg was not saying, lets get guns and go kill
people. It shows how difficult it is to prosecute anyone because of the
robust protections for free speech.
You have a constitutional right to say all people of this race should be
killed. The only way you could be prosecuted if youre talking to a
particular group of people where there is a likelihood of imminent lawless
behavior.

Our 1A: Congress shall make no law abridging the freedom of speech. You
can interpret no law to mean no law whatsoever, but that puts a lot of
pressure on abridgement and free speech
o What constitutes an abridgement?

o What is freedom of speech?


o Note that if no law means no law and you define abridgement
and free speech broadly, then laws against perjury, fraud, threats,
etc. are all unconstitutional.
Blackstones view: the freedom of speech prohibits the government from
punishing you prior to publishing something. Once its published, then you
can be prosecuted for it
o In the 19th century, Blackstones view was the most common view in
the U.S.
o Today, the U.S. doesnt agree with this at all
People have often said we should look to the purpose of the 1A, but the
framers did not give us much there.

CB 29-43: These pages summarize the rationale behind the 1A


Examples:
o Social costs of suppression and benefits of toleration
o Search for truth/marketplace of ideas
o Nimmer: why leave it up to judges to decide what we hear? It should
be up to the people
o True opinions only come when you hear both sides of the issue
Policy Question: Why dont we apply some sort of cost-benefit analysis to
this issue?
o Its difficult to figure out the benefit. Also, the benefit could come
later, like later innovation
o Using a formula goes against the whole marketplace of ideas
concept
1A is written entirely in negative terms. It is not an empowerment of
Congress is any way. It doesnt authorize Congress to make sure we have
acceptable speech (ex: they dont make sure we hear both sides)
Next class: start with problem of advocacy during wartime and the murder
advocacy exception (pg. 22)