The Law of Incitement

Incitement

Speech that intends to produce imminent lawless action AND is likely to produce this action; it is not protected under the first Amendment

Sedition

speech or conduct that encourages overthrow of the government, or rebellion against it

Sedition Act of 1798

made it illegal to write, say, or publish “false, scandalous, or malicious” things about the US government

Espionage Act of 1917

made it illegal to convey false reports to disrupt the WWI war effort, encourage disloyalty to the US, and discourage military enlistment

Sedition Act of 1918

-made it illegal to say, write, or print anything intended to cause ccontempt for the US government or disrupt military recruitment efforts

-It was an amendment to the 1917 Espionage Act and set the stage for Schenck v. US

Schenck v US

-established the clear and present danger standard for incitement but did not define this standard and left it open to interpretation

-upheld convictions for illegal speech under the Espionage Act of 1917

Whitney v California

-Defined the clear and present danger standard for incitement

-Established the counterspeech doctrine of speech

-Upheld the conviction of a woman essentially for being a communist

-Court said speech does not amount to incitement UNLESS:

• Speaker advocates for “immediate serious violence,” OR

• Immediate serious violence can be expected as a result of the speech, OR

• It’s clear from the speaker’s past conduct that they planned to advocate for immediate serious violence

• Immediate serious violence is left up to the courts to interpret