INCITEMENT TO INSURRECTION AND THE FIRST AMENDMENT
"It is hazardous to discourage thought, hope and imagination. ... [F]ear breeds repression; ... repression breeds hate;... hate menaces stable government;... the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies." Whitney v. California, 274...
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| Published in: | Wake Forest law review 2022-10, Vol.57 (4), p.971 |
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| Main Author: | |
| Format: | Article |
| Language: | eng |
| Subjects: | |
| Online Access: | Get full text |
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| Summary: | "It is hazardous to discourage thought, hope and imagination. ... [F]ear breeds repression; ... repression breeds hate;... hate menaces stable government;... the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies." Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring). "[W]hile the Constitution protects against invasions of individual rights, it is not a suicide pact." Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963), Justice Goldberg for the majority. "We enter parliament in order to supply ourselves, in the arsenal of democracy, with its own weapons ... of democracy is so stupid as to give us free tickets and salaries for this bear's work, that is its affair ... We do not come as friends, nor even as neutrals. We come as enemies. As the wolf bursts into the flock, so we come." Joseph Goebbels, Nazi Party Minister of Propaganda (1928). The free exchange of ideas, particularly in the political context, is critical to representative democracy. Intrinsic to the United States' constitutionally mandated commitment to the open marketplace of ideas is the robust protection of unpopular, and sometimes even harmful, speech. Federal statute, however, criminalizes advocacy that incites insurrectionary action likely to undermine or overthrow the democratic order of the government. This Article is the first survey and critique of the multifaceted doctrinal complexity of prosecuting incitement to insurrection. The Supreme Court has long recognized that incitement to violence that poses an imminent threat of harm-is not constitutionally protected. The simple imminence test, however, lacks adequate nuance to meet security needs that arise when political insurrection becomes a realistic possibility but does not yet pose an immediate threat. In place of current doctrine, the Article recommends a hybrid clear and imminent threat test for the prosecution of insurrectionary leaders who intentionally fire up mobs in order to gain or retain political offices through subterfuge, intimidation, threats, and brute force. It advocates that intentional dissemination of ideas likely to instigate violent, extra-constitutional efforts to overturn representative government should not be judged on immediacy. Instead, courts should review the context within which a speaker foments and incites followers to engage in insurrectionary conduct. This test strikes a balance between national security and First Amendment inte |
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| ISSN: | 0043-003X |