The Boundaries of Incitement
Incitement occurs when one person encourages another to commit a crime, which is generally considered a crime in itself. However, does the specific language or nature of the crime make a difference? Is there a distinction if the incitement is of a violent nature? Is it necessary to provide explicit instructions on how to carry out the crime, or is simply providing inspiration enough? The U.S. Supreme Court has addressed and modified the legal and criminal definition of incitement in various cases.
Schenck v. United States
In 1919, the U.S. Supreme Court ruled against Charles Schenck, general secretary of the Socialist Party in Philadelphia. Schenck had been arrested for distributing more than 15,000 flyers that encouraged men to resist induction into the draft during World War I.
The court unanimously held that Schenck was encouraging others to commit a crime, and presented a “clear and present danger” to the recruitment process during a time of war.
Schenck was imprisoned for six months.
Whitney v. California
In May 1927, the U.S. Supreme Court upheld a decision from 1920 against Charlotte Anita Whitney, who allegedly helped establish the Communist Labor Party of America (CLPA). She was convicted under the California Criminal Syndicalism Act because the CLPA supposedly taught the violent overthrow of government.
The justices not only applied the Schenck “clear and present danger” statute, but went on to say that freedom of speech did not cover what tended to “incite crime, disturb the public peace, or endanger the foundations of organized government…”.
The governor of California pardoned Whitney in June 1927, but the Supreme Court decision stood and was still used against people during the Red Scare of the 1950s.
Brandenburg v. Ohio
Finally, in 1969, Brandenburg v. Ohio explicitly overturned the decision from Whitney v. California.
Clarence Brandenburg invited a reporter to a KKK rally in the summer of 1964, who reported on several speeches there, including one that made reference to “revengeance” against Black and Jewish people and those that supported them. Brandenburg was arrested and charged with advocating violence under Ohio laws similar to the California Criminal Syndicalism Act.
The U.S. Supreme Court, however, overturned the lower courts’ conviction. They held that it was unconstitutional to punish the abstract advocacy of force or criminal action. They introduced the Brandenburg test, which required incitement to be encouraging “imminent lawless action”.
So, while the early 20th century Supreme Court took a strict approach to incitement, the modern definition, requires that the lawless action being encouraged be “imminent”, or about to happen.
So, much as with threats, incitement cannot be applied to figurative speech under modern rulings. Incitement must be encouraging imminent, close-at-hand crime. For instance, someone speaking into a microphone and whipping up a crowd to trespass and riot immediately following their speech.
