Does the First Amendment Protect Speech that Incites Illegal Conduct?

The Bill of Rights consists of the first ten amendments to the U.S. Constitution. They were introduced to safeguard individual liberties and restrict governmental authority. The First Amendment reflects these democratic ideals by establishing several freedoms, including the freedom of speech. Its free speech clause reads:

“Congress shall make no law… abridging the freedom of speech…”

This language sets up the First Amendment as a prohibition on Congress, our federal legislature. In other words, Congress may not pass laws that infringe upon our constitutional right to free speech.

The U.S. Supreme Court has determined that this prohibition extends beyond Congress. Through the passage of the Fourteenth Amendment and the doctrine of incorporation, the Supreme Court has concluded that this prohibition applies to government action of any kind and at any level that restricts free speech.

Also known as state action, government action can take many forms, including court injunctions, federal agency funding, public school policies, and local ordinances.

The First Amendment mainly restricts government regulation of private speech. It doesn’t prohibit restrictions on government speech. It also generally doesn't apply to speech restrictions imposed by private parties. For example, private property owners may generally set rules restricting speech on their property without raising First Amendment concerns.

Therefore, our constitutional freedom of speech functions as a restriction on the government’s ability to regulate speech and the free exchange of ideas.

Expression as Speech

The Court has also determined that our constitutional right to free speech includes the freedom of expression. Accordingly, it includes the written word, symbolic speech, and other types of expressive conduct. For example, wearing an armband to protest a war or participating in a parade are both forms of speech or expression protected by the First Amendment.

Unprotected Speech Categories

However, the right to free speech isn’t absolute, and the Court has established a limited number of unprotected speech categories. They include:

• Defamation
• Fighting words
• True threats
• Obscenity
• Child Pornography
• Inciting speech
• Fraud

This implies that the government can typically impose restrictions and penalties on certain types of speech. However, not every restriction on unprotected speech is constitutional, nor are all restrictions on protected speech unconstitutional.

Legal Standards

The Supreme Court has developed legal standards and frameworks for evaluating whether a government restriction on speech violates the First Amendment. These standards typically weigh the government interest served by the restriction against the First Amendment freedoms burdened by it.

Strict scrutiny is the most difficult standard to meet. It requires a speech restriction to serve a compelling state interest in the least restrictive manner available.

Content-based restrictions are typically subject to strict scrutiny. This is because a fundamental objective of free speech rights is to limit government control over which topics and opinions enter the marketplace of ideas.

Still, the government has legitimate interests, like public safety and order, which may necessitate certain speech restrictions. For example, a content-neutral ordinance restricting the time, place, and manner for parades on public streets will generally be upheld.

Schenck v. United States

In Schenck v. United States (1919), Justice Holmes established the now-defunct clear and present danger test. Schenk and others were convicted of violating the Espionage Act for disseminating literature meant to obstruct military recruitment.

The test reframed when the government could prohibit speech advocating illegal conduct. The Court determined that the state can prohibit speech if “the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

Applying this test, the Court unanimously affirmed the convictions of Schenck and others. The clear and present danger test remained the standard for decades.

Whitney v. California

In Whitney v. California (1927), the Court upheld a conviction under a California anti-syndicalism law. The law criminalized membership and affiliation with any group advocating illegal acts of violence or terrorism to effectuate economic or political change.

Many states had similar laws at the time. The Court encouraged considerable deference for the state legislatures’ assessments of this type of advocacy posing “danger to the public peace and the security of the State.”

However, Whitney is best known for Justice Brandeis’s concurrence, which promoted more robust protection for free speech. He contended that the state isn’t justified in prohibiting speech advocating illegal action unless it rises to the level of incitement or there’s some indication of immediate action based on the advocacy.

The state can only meet the clear and present danger test, Justice Brandeis continued, if it can demonstrate “either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.”

Terminiello v. City of Chicago

In Terminiello v. Chicago (1949), the Court applied the clear and present danger test when it reviewed the conviction of an outspoken and provocative activist. Arthur Terminiello was convicted of disorderly conduct after the crowd erupted in violence at one of his speeches.

The court reversed his conviction in a narrow 5-4 majority. It held that one purpose of free speech is to invite dispute. Provocative speech may challenge biases and preconceived ideas, which may be unsettling and cause unrest and anger.

However, it’s still protected against censorship “unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.”

The dissenting justices focused more on the violence that resulted.

Feiner v. New York

The majority in Feiner v. New York (1951) also focused on resulting violence. Applying the clear and present danger test, the Feiner Court upheld a speaker’s conviction for disorderly conduct. Feiner’s sidewalk speech encouraged African Americans to “rise up in arms and fight for equal rights.”

The crowd grew unruly, and police asked Feiner three times to stop. When he ignored their repeated requests, the police arrested him. The Supreme Court relied on the state courts’ evaluation of the police power used to maintain public safety and order.

It explained that "the imminence of greater disorder coupled with petitioner's deliberate defiance of the police officers convince us that we should not reverse this conviction in the name of free speech.”

Brandenburg v. Ohio

In Brandenburg v. Ohio, the Court redefined the test for First Amendment protection of speech that advocates unlawful action. The Brandenburg Court reversed the conviction of a Ku Klux Klan leader found to have violated an Ohio anti-syndicalism statute.

The Court explained that the state may not generally ban or penalize “mere advocacy of the use of force or violence.” However, it may do so “where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

In other words, the government may prohibit and punish speech directed at causing and likely to cause immediate lawless action. Subsequent applications of the Brandenburg standard have raised questions surrounding its imminence and likelihood requirements.

Hess v. Indiana

One such case was Hess v. Indiana (1971). In Hess, the Court reviewed Gregory Hess’s conviction for disorderly conduct.

During an anti-war demonstration on a public university campus, Hess was arrested after exclaiming, “’We'll take the fucking street later (or again).’”

The Court overturned his conviction, clarifying that his statement was not aimed at any specific individual or group. Furthermore, the evidence did not prove that his statement was meant to incite immediate disorder.

Hate Speech, Fighting Words, and True Threats

Political speech and advocacy often involve riling up an audience. They are often accompanied by stirring and emotional appeals to unite and act for or against a common cause.

If such appeals don’t incite lawless action, the First Amendment must protect them. Even hateful speech and otherwise offensive speech receive First Amendment protection unless it falls under another category of unprotected speech.

For more on this topic, see FindLaw's article, "Does the First Amendment Protect Threats and Hate Speech?"

Fighting Words

Like incitement, the Court has also recognized fighting words as another unprotected category of speech.

The Court explained in Chaplinsky v. New Hampshire (1942) that the First Amendment doesn’t protect fighting words “likely to provoke the average person to retaliation, and thereby cause a breach of the peace.”

The Court defined fighting words as “personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction.”

Although the Court held that the state may restrict such speech, the Court has yet to uphold a state action based on Chaplinksy.

In Cohen v. California (1971), the Court reviewed a breach of the peace conviction. Paul Cohen was arrested when he went to a California courthouse wearing a jacket with the words, “Fuck the Draft.” The Court overturned his conviction and determined that the messaging didn’t constitute fighting words because it wasn’t directed at anyone personally.

True Threats

Similarly, the First Amendment doesn’t protect true threats. That is, speech conveying a serious intent to commit illegal acts of violence directed at a specific group or person.

In Watts v. United States (1969), the Court distinguished true threats from political hyperbole. The defendant, Robert Watts, attended a public rally where he said, “If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J."

Watts was arrested under a federal law criminalizing threats against the President. The High Court overturned his conviction, finding that Watts’s anti-military draft statement was political hyperbole rather than a true threat.

In Virginia v. Black (2003), the Court clarified its definition of true threats. The Virginia Court reviewed a state law prohibiting cross-burning. The Court said the state could ban intimidation as a “type of true threat” if the speaker “means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”

Over the years, the Supreme Court has established and modified rules to address First Amendment protection for speech that promotes and encourages illegal conduct. The narrow decisions and deviation from precedent illustrate the challenges associated with regulating such speech in a democracy that values public discourse and dispute.