Explores the line between free speech protected by the First Amendment and unprotected incitement to imminent lawless action.
Free Speech and Incitement in the Twenty-First Century explores the line between free speech and incitement, which is a form of expression not protected by the First Amendment. Incitement occurs when a person intentionally provokes their audience to engage in illegal or violent action that is likely to, or will, occur imminently. This doctrine evolved from World War I through the Cold War and the civil rights movement era, culminating in a test announced by the US Supreme Court in Brandenburg v. Ohio (1969). Since the 1970s, this doctrine has remained largely unchanged by the Supreme Court and, as such, has received relatively little academic or media attention. Since the late 2010s, however, violence at political rallies, armed protests around Confederate statues, social unrest associated with demonstrations against police, and an attack on the US Capitol have led to new incitement cases in the lower courts and an opportunity to examine how incitement is defined and applied. Authors from different perspectives in Free Speech and Incitement in the Twenty-First Century help the reader understand the difference between free speech and incitement.
Acknowledgments Preface Donald A. Downs Introduction: Advocacy, Incitement, and Imminent Lawless Action JoAnne Sweeny and Eric T. Kasper PART I: The Theoretical Underpinnings of Brandenburg 1. Tolerating the Violent: The Liberal Egalitarian Justifications for the Brandenburg Test Adam Kunz 2. Anti-Orthodoxy, Inclusion, and the Advocacy of Violence Timothy C. Shiell 3. Free Speech, Social Justice, and Brandenburg Stephen M. Feldman PART II: Incitement Extensions 4. Criminal Solicitation and Incitement as Borderline Criminal Speech: Wily Agitators and Fuzzy Lines Rachel E. VanLandingham 5. Words Behind Walls: Examining the Line Between Incitement and Administrative Overreach in Prisons Shavonnie R. Carthens 6. I Fought the Law, and the First Amendment Won: How the Brandenburg Test Safeguards Musical Expression Eric T. Kasper 7. ""Terrorism"" and Arguments to Disregard Brandenburg's Incitement Test Christina E. Wells PART III: Brandenburg in the Contemporary Era 8. Incitement on the Internet: Rethinking First Amendment Standards in Cyberspace Howard Schweber and Rebecca J. Anderson 9. Incitement in Context JoAnne Sweeny 10. We Told You So: Why Courts Won't Hold Trump Accountable for Incitement Daniel J. Canon Conclusion: The Future of Brandenburg, Incitement, and the First Amendment Eric T. Kasper and JoAnne Sweeny Appendix A – Brandenburg v. Ohio Appendix B – Relevant US Supreme Court Rulings Contributors Index
Eric T. Kasper is Professor of Political Science and Director of the Menard Center for Constitutional Studies at the University of Wisconsin-Eau Claire. He is the coauthor of The Supreme Court and the Philosopher: How John Stuart Mill Shaped US Free Speech Protections. JoAnne Sweeny is a Professor of Law at the Louis D. Brandeis School of Law, University of Louisville. Her primary area of scholarship is the freedom of expression and feminist jurisprudence.
Reviews for Free Speech and Incitement in the Twenty-First Century
""This is a substantial contribution to the field of free speech law because it looks to new challenges to the Brandenburg test and toward horizons of future free speech jurisprudence in ways that are both critically important to our contemporary politics and scholarly impactful to the field. This volume ranges across a number of pertinent problems and issues with the incitement test in a way that both informs and updates scholars but also calls on them to analyze and critically reflect. It certainly deepened my understanding of free speech law."" — Jay Douglas Steinmetz, author of Beyond Free Speech and Propaganda: The Political Development of Hollywood, 1907–1927
