The Incitement Test (Brandenburg)
"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."
law2.umkc.edu/…
Note the “except where such advocacy clause..”
In 1969 Supreme Court Case Brandenburg v. Ohio, for someone to be held liable for inciting violence, the speech at issue must be directed to inciting, and likely to incite, imminent lawless conduct.
“Just making statements in the abstract or even statements at a prior rally are just too far disconnected from time and space to constitute actual incitement,” UNC School of Law Professor Mary-Rose Papandrea told LawNewz.com.
lawnewz.com/…
“The U.S. Supreme Court has never been clear what how much time can pass between a defendant’s statements advocating violence and the actual violence (or threat of imminent violence),” Papandrea said
“I have little doubt that Trump’s language and general comportment does incite some of his followers to violent behavior, in the way we might use that word in lay English,” First Amendment attorney Floyd Abrams told LawNewz.com. However, legal liability is a different story. Abrams also pointed out that speech must be intentionally done to incite violence.
So here we are. We have Spokespersons at the RNC advocating the murder of a Presidential Candidate and we are forced to once again look at the state of current law regarding Incitement to Violence, the last ruling of the Supreme Court in Brandenberg.
The ruling to many people remains vague and unclear and largely untested except in the cases of “symbolic free speech,” such as flag burning and the like, slanted towards allowing the free expression of violence but only in the absence of three tests: The speech: 1) Must be directed at inciting violence, 2) Must be imminent in producing violence, 3) Must be Likely to Produce violence. In other words, if all thee of these tests are met in any speech, it may be regulated speech in a democracy.
For my very inexpert opinion, I think Brandenberg is stringent enough to warrant investigation and the potential prosecution of a Mr. Al Baldasero, Veterans Advisor to Donald Trump and the Founder of a radio hate show, “Political Cesspool.”
If the law has any meaning, it is meant to deter and prevent the commission of a crime. We should not be forced to wait and see whether Mr. Baldasero’s comments actually produced a crime, proving imminence (test 3) and likelihood (test 2), while direction of inciting violence is clear in the threats to Ms. Clinton, and by extension, all Democrats.
I would welcome expert legal opinion on this one.