Quote:
Originally posted by Jimbo
That sounds a similar to bin Laden's interview with Peter Bergen.
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It was actually a guy named Brandenburg and his conviction under Ohio law for inciting violence was overturned. It is the source for the current rule: "the constitutional guarantees of free speech and free press do not permit a State to 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."
Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
It is a two-part test: (1) the statements must be "directed to inciting or producing imminent lawless action" and (2) it must be "likely to incite or produce such action." The imminence requirement is the most important and is rooted in the "fire in a crowded theater" principle 2VP mentioned. This rule comes from Justice Oliver Wendell Holmes opinion in
Schenck v. United States:
Quote:
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But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. 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. It is a question of proximity and degree.
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Schenck v. United States, 249 U.S. 47, 52 (1919) (internal citations omitted)
This was the case that gave us the "clear and present danger" test.
Under RL's hypo, the issue is what he means by "Encourages violent jihad." On the slim facts provided, the
Brandenburg test would seem to cover this.
A far better case for incitement to violence could be made against Al Sharpton, Morris Powell and Sikhulu Shange in the Freddy's Fashion Mart murders. But apparently Sharpton is now the conscience of the Democratic Party ("During the primaries, there was one person who consistently was always there, keeping the peace and the compass going in the right direction, and that was Al Sharpton." - John Kerry).