Incitement to Riot in the Age of Flash Mobs

84 Pages Posted: 22 Feb 2013 Last revised: 26 Feb 2013

Margot E. Kaminski

Ohio State University (OSU) - Michael E. Moritz College of Law; Yale University - Yale Information Society Project; Yale University - Law School

Date Written: February 21, 2013


As people increasingly use social media to organize both protests and robberies, government will try to regulate these calls to action. With an eye to this intensifying dynamic, this Article reviews First Amendment jurisprudence on incitement and applies it to existing statutes on incitement to riot at a common law, state, and federal level. The article suggests that First Amendment jurisprudence has a particularly tortuous relationship with regulating speech directed to crowds. It examines current crowd psychology to suggest which crowd behavior, if any, should as a matter of policy be subject to regulation. It concludes that many existing incitement-to-riot statutes are both bad policy and unconstitutional under Brandenburg v. Ohio. The article consequently suggests that courts should be careful in the application of these statutes, and states should be hesitant to build upon existing incitement-to-riot statutes to regulate new media. The article also reveals a question about freedom of assembly: when is assembly peaceable and protected, and when can assembly be constitutionally prohibited?

Keywords: Social Media, Internet, free speech, First Amendment, freedom of expression, freedom of assembly

Suggested Citation

Kaminski, Margot E., Incitement to Riot in the Age of Flash Mobs (February 21, 2013). University of Cincinnati Law Review, Vol. 81, 1 2013. Available at SSRN:

Margot E. Kaminski (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

Yale University - Yale Information Society Project ( email )

127 Wall Street
New Haven, CT 06511
United States

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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