The Constitution makes it hard to punish incitement to violence

Generalized threats and hateful rhetoric have not, so far, counted as an incitement to violence.

The murder of Charlie Kirk is a national tragedy. Kirk, a prominent conservative influencer and ally of President Donald Trump, was celebrated for his devotion to conservative ideals and fondness for debating.

The shock waves from what happened in Utah have been felt across the country and have hit young people especially hard. Kirk was, for them, a constant presence and a galvanizing symbol.

The New York Times summarized reactions to Kirk’s murderer this way: It seems as if “some terrible disease … [is] gripping the nation, with no cure on the horizon.” The Times quoted a conservative Republican who recognizes that “This could happen to anybody in this country….I think that people across the board are afraid.”

Political leaders from both sides of the aisle called for unity and appealed to Americans to change course. As Utah Gov. Spencer Cox (R) observed, “I would beg you to look in the mirror and to see if you can find a better angel in there somewhere…. We just need every single person in this country to think about where we are and where we want to be. To ask ourselves, ‘Is this—is this it?’”

Trump did not offer such a unifying message. He reacted to Kirk’s killing by focusing on the rhetoric of the “radical left,” which he said is “responsible for the terrorism that we're seeing in our country today.”

As he put it, "From the attack on my life in Butler, Pennsylvania, last year—which killed a husband and father—to the attacks on ICE agents, to the vicious murder of a health care executive in the streets of New York, to the shooting of House Majority Leader Steve Scalise and three others, radical left political violence has hurt too many innocent people and taken too many lives."

He said people who “compared wonderful Americans like Charlie to Nazis” were responsible for Kirk’s death. Along the way, the president made no mention of the political violence that has targeted Democrats.

News reports suggest that Trump wants to use Kirk’s murder as the occasion to crack down on “people who explicitly say they will commit acts of violence.“ But the plan seems to be also to go after those who “speak in violent terms about Trump and his allies.”

As the news reports suggest, the president wants to make sure that they “face consequences.”

For the administration to take steps to stop political violence in this country is admirable and long overdue. But respecting free speech while going after those who use violent terms or say hateful things will not be easy.

In a country devoted to free speech, it shouldn’t be. Protecting speech that is heretical, upsetting, or provocative is crucial to the vitality of the First Amendment.

Of course, speech that directly incites violence is another matter. Free speech does not mean we are free to advocate the killing of anyone, including public figures like Charlie Kirk.

However, proving incitement is a very difficult thing to do, especially if the speech does not overtly urge violent action. That becomes clear if we look at the section of the U.S. Code that criminalizes “Solicitation to commit a crime of violence.”

It defines such solicitation as occurring when someone “with intent that another person engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force against property or against the person of another in violation of the laws of the United States, and under circumstances strongly corroborative of that intent, solicits, commands, induces, or otherwise endeavors to persuade such other person to engage in such conduct…”

To qualify as incitement, speech must create an immediate risk of harm to another person. It must lay out a “road map” for violence directed against a particular individual or group.

Generalized threats or hateful rhetoric, even if they contribute to creating an atmosphere conducive to violence, have not, until this point, counted as an incitement to violence.

The Supreme Court has interpreted the Constitution this way since 1969, when it struck down an Ohio law that made it illegal to advocate “crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” and assembling “with any society, group, or assemblage of persons formed to teach or advocate…” such action.

The case, Brandenburg v Ohio, arose when a leader of the Ku Klux Klan made a speech full of derogatory statements about Blacks and Jews. The court said that the First Amendment regards “The mere abstract teaching ... [about] the moral propriety or even moral necessity for a resort to force and violence [as different from] preparing a group for violent action and steeling it to such action.”

It ruled that “Freedoms of speech and press do not permit a State to forbid 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.”

The keys to the Brandenburg test are the words “imminent” and “likely to produce” violence. Justice William Douglas explained that the test was whether words create “a clear and present danger” to an identifiable individual.

In 1982, the court reaffirmed the Brandenburg test.

That case involved a boycott of white merchants in Claiborne County, Miss., organized by the National Association for the Advancement of Colored People (NAACP). The boycott was designed to pressure local businesses to support various civil rights measures.

To rally support, Charles Evers, the field secretary of the NAACP in Mississippi and a principal organizer of the boycott, gave a fiery speech in which he said, “If anyone breaks the boycott, I’ll break your neck.”

The court decided that such words could not justify legal action against Evers. Justice John Paul Stevens wrote, “It is clear that ‘fighting words’—those that provoke immediate violence—are not protected by the First Amendment….” But “mere advocacy of the use of force or violence does not remove speech from the protection of the First Amendment.”

“[S]peeches, marches, and threats of social ostracism,” he argued, do not constitute an imminent threat to a particular person. Only “violent conduct is beyond the pale of constitutional protection.”

President Trump is surely right to be concerned about the vile, hateful rhetoric that has come to characterize the American political scene. But it is not just a problem of the left.

Treating it as if it is makes the problem only worse.

Political speech is frequently heated, emotional, and exaggerated. That’s why it is sometimes so hard to take.

The man who allegedly shot Kirk did a reprehensible thing. We should all denounce it and not look for scapegoats.

A century ago, Supreme Court Justice Oliver Wendell Holmes explained why it is so hard to police incitement to violence. “Every idea,” he said, “is an incitement. It offers itself for belief, and, if believed, it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result.”

That’s why the Supreme Court has set the bar so high in cases of alleged incitement to violence. If the president and his administration use Kirk’s death to roll out a plan to punish ideas that incite, we will see if the Supreme Court does what it should and stands by its Brandenberg decision.

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.

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