In the United States, full-throated advocacy—even advocacy of violence—is protected by the First Amendment of the Constitution. Few other countries define “incitement to violence” as narrowly, and governments tend to exploit any authority to regulate speech. The ACLU has played a central role in developing America’s speech-protective modern incitement doctrine over the last century, sometimes by representing clients with abhorrent views, including in the landmark Brandenburg v. Ohio. The Brandenburg test sets a high bar for incitement that should be maintained, even with respect to online speech. Calls for increased regulation of speech should not be heeded.
Emerson J. Sykes,
In Defense of Brandenburg: The ACLU and Incitement Doctrine in 1919, 1969, and 2019,
85 Brook. L. Rev.
Available at: https://brooklynworks.brooklaw.edu/blr/vol85/iss1/3