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.
Inhaltsverzeichnis
Acknowledgments
Preface
Donald A. Downs
Introduction: Advocacy, Incitement, and Imminent Lawless Action
Jo Anne 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. Van Landingham
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
Jo Anne 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 Jo Anne Sweeny
Appendix A – Brandenburg v. Ohio
Appendix B – Relevant US Supreme Court Rulings
Contributors
Index
Über den Autor
Jo Anne 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.
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