the first amendment in a time of crisis
Tobias Barrington Wolff
tbwolff at UCDAVIS.EDU
Wed Apr 3 11:48:24 PST 2002
In response to Robin and Marci:
Brandenburg requires that a speaker's words be intentionally aimed
at producing imminent lawless action, and that they be likely to do
so. Perhaps the speaker's words need not include an express admonition to
break the law, provided that such an admonition is clearly understood by
the audience. I am unaware of a case in which a speaker has been convicted
for intentionally inciting an audience to assault the speaker himself. If
you could prove that a controversial speaker actually intended to incite
his audience to harm him, I suppose that might satisfy Brandenburg, but
it's a rather fanciful situation.
Marci, I did not mean to suggest that you were incorrect in
arguing that the recent New York cases implicate Feiner. Quite the
contrary -- I think Feiner is the only possible support for upholding those
convictions. I can see how my last message was unclear on that point --
sorry for the confusion. My point was that the apparent facts in these
cases could not satisfy Brandenburg's incitement standard, which appears
largely to have superceded Feiner. If a speaker cannot be arrested for
"inciting a riot" unless he intends to do so and is likely to have imminent
success, it would seem to follow that a speaker cannot be arrested for
"unintentionally inciting a riot" simply because his views are
unpopular. I take this to be a good part of the reason why Feiner, which
was drastically limited by Edwards v. South Carolina in 1963, has not been
cited by the Supreme Court in thirty years, even in cases -- like Texas v.
Johnson -- where it might have been thought pertinent. That's why I
characterize as "doctrinally inaccurate" the suggestion that Feiner might
still be justified in terms of "incitement."
At 01:05 PM 4/3/2002 -0500, you wrote:
>"Incitement" describes a speaker who urges others to commit unlawful
>acts. To characterize a speaker as "inciting" a riot because her views
>are so unpopular as to provoke non-law-abiding citizens to take violent
>action is both doctrinally inaccurate and very disturbing.
>Can't one incite a riot without explicity urging the commission of
>unlawful acts? In my dictionary, "incite" means "to move to action",
>"stir up", "spur on", or "urge on", in that order. If the words moved
>others to act, whether or not they included an admonition do so, and
>whether or not they were intended to do so, it would seem they incited.
* * *
Tobias Barrington Wolff
Assistant Professor of Law
U.C. Davis Law School
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