Incitement to Insurrection and the First Amendment

Abstract

This Article is the first survey and critique of the multifaceted doctrinal complexity of prosecuting incitement to insurrection. The Supreme Court has long recognized that incitement to violence that poses an imminent threat of harm is not constitutionally protected. The simple imminence test, however, lacks adequate nuance to meet security needs that arise when political insurrection becomes a realistic possibility but does not yet pose an immediate threat.

In place of current doctrine, the Article recommends a hybrid clear and imminent threat test for the prosecution of insurrectionary leaders who intentionally fire up mobs in order to gain or retain political offices through subterfuge, intimidation, threats, and brute force. It advocates that intentional dissemination of ideas likely to instigate violent, extra-constitutional efforts to overturn representative government should not be judged on immediacy. Instead, courts should review the context within which a speaker foments and incites followers to engage in insurrectionary conduct. This test strikes a balance between national security and First Amendment interests, safeguarding the expression of unpopular ideas while also preventing populist leaders from using the First Amendment as a shield against criminal responsibility for inciting others to insurrectionary violence.

Keywords: Incitement, Insurrection, Free Speech, Theory, First Amendment