Incitement to Unlawful Conduct

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Incitement to unlawful conduct raises a central and difficult issue about the proper boundaries of freedom of expression and of the first amendment. Many of the Supreme Court's most important freedom of speech decisions have involved some form of incitement. Though the term incitement sometimes refers to emotionally charged appeals to immediate action, the word is most often used to cover any urging that others commit illegal acts.

The basic problem about incitement is fairly simple, involving a tension between a criminal law perspective and a free speech perspective. Any society seeks to minimize the number of crimes that are committed. Some people commit crimes because others urge them to do so. Although the person who actually commits a crime may usually seem more to blame than someone who encourages him, on other occasions the inciter, because of greater authority, intelligence, or firmness of purpose, may actually be more responsible for what happens than the person who is the instrument of his designs. In any event, because the person who successfully urges another to commit a crime bears some responsibility and because effective restrictions on incitement are likely to reduce the amount of crime to some degree, sound reasons exist for punishing those who incite.

Anglo-American criminal law, like the law of other traditions, has reflected this view. In 1628, edward coke wrote that "all those that incite … any other" to commit a felony are guilty of a crime; and, at least by 1801, unsuccessful incitement was recognized as an offense in England. Modern American criminal law generally treats the successful inciter on a par with the person who performs the criminal act; the unsuccessful inciter is guilty of criminal solicitation, treated as a lesser crime than the one he has tried to incite.

From the free speech perspective, the problem of incitement takes on a different appearance. A basic premise of a liberal society is that people should be allowed to express their views, especially their political views. Some important political views support illegal actions against actual or possible governments. Indeed, one aspect of the political tradition of the United States is that revolutionary overthrow of existing political authority is sometimes justified. Other views deem certain illegal acts justified even when the government is acceptable. Were all encouragements of illegal activity suppressed, an important slice of political and social opinions would be silenced. Further, in the practical administration of such suppression some opinions that did not quite amount to encouragement would be proceeded against and persons would be inhibited from saying things that could possibly be construed as encouragements to commit crimes. Thus, wide restrictions on incitement have been thought to imperil free expression, particularly when statutes penalizing incitement have been specifically directed to "subversive" political ideologies.

The tension between criminal law enforcement and freedom of expression is addressed by both legislatures and courts. Legislatures must initially decide what is a reasonable, and constitutionally permissible, accommodation of the conflicting values. When convictions are challenged, courts must decide whether the statutes that legislatures have adopted and their applications to particular situations pass constitutional muster.

Most states have statutes that make solicitation of a crime illegal. These laws are drawn to protect speech interests to a significant extent. To be convicted of solicitation, one must actually encourage the commission of a specific crime. Therefore, many kinds of statements, such as disinterested advice that committing a crime like draft evasion would be morally justified, approval of present lawbreaking in general, or urging people to prepare themselves for unspecified future revolutionary acts, are beyond the reach of ordinary solicitation statutes.

One convenient way to conceptualize the First Amendment problems about incitement is to ask whether any communications that do amount to ordinary criminal solicitation are constitutionally protected and whether other communications that encourage criminal acts but fall short of criminal solicitation lack constitutional protection.

All major Supreme Court cases on the subject have involved political expression of one kind or another and have arisen under statutes directed at specific kinds of speech. Some of the cases have involved criminal conspiracy charges, but because the conspiracy has been to incite or advocate, the constitutionality of punishing communications has been the crucial issue. In schenck v. united states (1919) the Court sustained a conviction under the 1917 espionage act, which made criminal attempts to obstruct enlistment. The leaflet that Schenck had helped to publish had urged young men to assert their rights to oppose the draft. Writing the majority opinion that found no constitutional bar to the conviction, Justice oliver wendell holmes penned the famous clear and present danger test: "The question in every case is whether 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." Much was unclear about this test as originally formulated and as subsequently developed, but the results in Schenck and companion cases show that the Court then did not conceive the standard as providing great protection for speech. During the 1920s, while the majority of Justices ceased using the test, eloquent dissents by Holmes and louis d. brandeis forged it into a principle that was protective of speech, requiring a danger that was both substantial and close in time in order to justify suppressing communication. Even these later opinions, however, did not indicate with clarity whether the test applied to ordinary criminal solicitation or whether an intent to create a clear and present danger would be sufficient for criminal punishment.

During the 1920s, the majority of the Supreme Court was willing to affirm convictions for expression, so long as the expression fell within a statutory prohibition and the statutory prohibition was reasonable. Thus, in gitlow v. new york (1925) the Court upheld a conviction under a criminal anarchy statute that forbade teaching the propriety of illegally overthrowing organized government. The Court concluded that the legislature could reasonably anticipate that speech of this type carried the danger of a "revolutionary spark" kindling a fire. The standard applied in Gitlow and similar cases would permit suppression of virtually any type of speech that a legislature might consider to create a danger of illegal activity, a category far broader than ordinary criminal solicitation.

In the 1930s the Supreme Court began to render decisions more protective of speech, and in herndon v. lowry (1937) the Court reversed a conviction for attempting to incite insurrection, when the evidence failed to show that the defendant, a Communist party organizer, had actually urged revolutionary violence. The majority in Herndon referred to the clear and present danger test with approval. In a series of subsequent decisions, that test was employed as an all-purpose standard for First Amendment cases.

In 1951, the Supreme Court reviewed the convictions of eleven leading communists in dennis v. united states. The defendants had violated the Smith Act by conspiring to advocate the forcible overthrow of the United States government. As in Gitlow, the expressions involved (typical communist rhetoric) fell short of inciting to any specific crime. The plurality opinion, representing the views of four Justices, accepted clear and present danger as the appropriate standard, but interpreted the test so that the gravity of the evil was discounted by its improbability. In practice, this formulation meant that if the evil were very great, such as overthrow of the government, communication creating a danger of that evil might be suppressed even though the evil would not occur in the near future and had only a small likelihood that it would ever occur. The dissenters and civil libertarian observers protested that this interpretation undermined the main point of "clear and present" danger. Dennis is now viewed by many as a regrettable product of unwarranted fears of successful communist subversion. In subsequent cases, the Court emphasized that the Smith Act reached only advocacy of illegal action, not advocacy of doctrine. In the years since Dennis only one conviction under the act has passed this stringent test.

The modern constitutional standard for incitement cases arose out of the conviction of a Ku Klux Klan leader for violating a broad criminal syndicalism statute, not unlike the statute involved in Gitlow. Unsurprisingly, the Court said in brandenburg v. ohio (1969) that the broad statute was unconstitutional. But it went on to fashion a highly restrictive version of clear and present danger: that a state may not "forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." This test requires lawless action that is likely, imminent, and intended by the speaker. Only rarely could such a test possibly be met by speech that does not amount to criminal solicitation, and under this test both solicitation of crimes in the distant future and solicitation unlikely to be acted upon are constitutionally protected. In Brandenburg, however, the Court had directly in mind public advocacy; it is unlikely that this stringent test also applies to private solicitations of crime that are made for personal gain. The present law provides significant constitutional protection for political incitements, but how far beyond political speech this protection may extend remains uncertain.

Kent Greenawalt


American Law Institute 1985 Model Penal Code, Section 5.02 and Commentary. St. Paul, Minn.: West Publishing Co.

Greenawalt, Kent 1980 Speech and Crime. American Bar Foundation Research Journal 1980:647–785.

Linde, Hans A. 1970 "Clear and Present Danger" Reexamined: Dissonance in the Brandenburg Concerto. Stanford Law Review 22:1163–1186.