Inflammatory Speech: Offense Versus Incitement

By Alexander Tsesis. Full text here.

The commonly accepted notion that content regulations on speech violate the First Amendment is misleading. In three recent cases—Snyder v. Phelps, Brown v. Entertainment Merchants Ass’n, and United States v. Stevens—the Court made clear that free speech includes the right to express scurrilous, disgusting, and disagreeable ideas. A different set of cases, however, concluded that group defamation, intentional threats, and material support for terrorist organizations are not protected forms of expression. This Article seeks to make sense of this doctrinal dichotomy and to develop clearer guidelines for regulating incitements that are posted on the Internet and in public areas.

Many leading First Amendment scholars regard the Supreme Court’s jurisprudence on outrageous and inciting expressions to be inconsistent. These academic authors often adopt a libertarian theory of the Free Speech Clause. They generally agree with cases that strike limits on offensive statements but disregard, or outright ignore, those that uphold restrictions on threats and defamations made in the absence of any imminent threat of harm. This Article demonstrates that opponents of incitement regulations fail to differentiate policies that protect public safety from those that silence outrageous but benign expressions.

I propose a relatively straightforward method for evaluating the constitutionality of incitement laws. The mens rea of a speaker is key to judicial determinations about whether true threats, group defamation, and material support for terrorists are actionable or constitutionally protected. This Article parses the Court’s analysis of unprotected incitement that poses a threat to public safety. A small but significant group of decisions belies the libertarian claim that incitement is constitutionally protected. My proposal will undoubtedly be controversial because the method I propose would augment juries’ and judges’ authority to assess the context within which threatening statements are made and qualify the relevance of the canonic imminent threat of harm doctrine.