The Bill of Rights and the 14th Amendment

First Amendment

When does speech cross the line into unprotected incitement?

According to the U.S. Supreme Court’s standard in Brandenburg v. Ohio (1969), even speech that advocates illegal conduct is protected speech under the First Amendment unless the speech incites imminent lawless action and is likely to cause such unlawful action. Brandenburg involved a Ku Klux Klan leader near Cincinnati, Ohio, area who gave a speech filled with racist comments about African-Americans and Jews. He also said that if the government kept up its course of action, there would have to be some “revengeance” taken. However, the Court unanimously determined that this fell far short of incitement to imminent lawless action.

The Court explained: “These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such act.”


This is a web preview of the "The Handy Law Answer Book" app. Many features only work on your mobile device. If you like what you see, we hope you will consider buying. Get the App