Incitement in an Era of Populism: Updating Brandenburg After Charlottesville
University of Pennsylvania Journal of Law & Public Affairs, Volume 5, Issue 2, pp. 56-121, 2020.
66 Pages Posted: 26 Feb 2019 Last revised: 20 Feb 2020
Date Written: September 30, 2019
We live in an era of populism, characterized by political polarization, inciting speech on social media, and an escalation in hate crimes. The regulatory framework for direct incitement to imminent lawless action established fifty years ago in Brandenburg is showing signs of severe strain. One of the central frailties of Brandenburg’s three-part test is the lack of guidance on how courts should evaluate the probability that an inciting speech act will cause an imminent offense. In the absence of clear direction on analyzing risk, judges often rely on outdated heuristics and misleading metaphors. This article is the first to draw on behavioral research to construct a systematic evidence-based framework for assessing the likelihood that inciting speech will result in imminent lawless action. This matrix is then applied to the fact pattern in Sines v. Kessler, a civil suit arising from the events in Charlottesville, Virginia in 2017.
Keywords: incitement, threat, hate speech, Brandenburg, First Amendment, Charlottesville, risk, law and social science
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