One of our most cherished freedoms is speech, the right to speak our minds without censorship. Americans will rightly abhor almost any limit on that right. But, in reality, there are limits to speech. Just as we have the Marquess of Queensberry rules in boxing, there must be some limits to speech.
One of those limits was laid out in Brandenburg v. Ohio in the 1969 Supreme Court decision that allows the government to forbid “incitement” speech. Such incitement speech was defined as that which is “directed at inciting or producing imminent lawless action” and “likely to incite or produce such action” (such as a speech to a mob urging it to attack a nearby building). Also, within the categories of speech not protected from government restrictions under the First Amendment are defamation, fraud, obscenity, child pornography, fighting words, and threats.
Under the Brandenburg decision, there was one loophole for speech that urges action at some unspecified future time. That was the “imminent lawless action” loophole. It all comes down to the word “imminent.” A dictionary definition states that it is something “coming or likely to happen very soon.” For a more legal definition we have from West’s Encyclopedia of American Law: “Imminent peril, for example, is danger that is certain, immediate, and impending, such as the type an individual might be in as a result of a serious illness or accident. The chance of the individual dying would be highly probable in such situation, as opposed to remote or contingent.” In Quimbee, another legal source, their definition of imminent is, “When an event will occur without a significant delay but not necessarily immediately.”
Imminent, like beauty, is therefore in the eye of the beholder. All definitions agree that there may be a period between the offending speech and the resultant criminal activity, but “soon” is not a specific period of time that all would agree upon. When imminent danger is used in cases of homicide in self-defense, we run into the judgement of a “reasonable and prudent man.” The “reasonable man” usage goes back to English common law and means that, if in the same position, what would the average person think or do.
In a time where someone can speak, type, or otherwise convey a message, and that “speech” can be anywhere in the world in a matter of seconds, “soon” may require a new interpretation. The judgement thus becomes one of determining how that speech may be interpreted by an audience that includes both reasonable and unreasonable people. A determination of whether some specific speech will place others in “imminent” physical danger will have to be made by a reasonable person who judges the content, audience, and likelihood of a harmful outcome.
There is a difference between an average person with a limited presence on social media expressing their displeasure with someone and a prominent person or celebrity with millions of zealous followers, many of whom have expressed a willingness to react with violence on behalf of that person, making a similar remark. The speech in this case, while similar in nature, may be judged by reasonable people to have drastically different anticipated outcomes. It is the potential risk of others performing the unlawful act that places others at risk.
The anonymity of social media has lifted the proverbial rock to release new vermin that would have been better left undisturbed. At this point in our history, we have opened Pandora’s Box, the legendary can of worms, and the Genie’s bottle all at the same time. The hornet’s nest has been whacked. With our newfound utility comes a new responsibility. That our judges and political leaders have failed to keep up with this new frontier is a sign that perhaps we need new people in those positions.
While we need to protect our precious freedoms, we need not abandon common sense. Lies are protected speech, but when those lies have fraud or violence as a goal, that speech is no longer a protected freedom. Likewise, when a mobster tells his henchmen that someone “should sleep with the fishes,” we all know that there is about to be one less mobster in the world. When a president uses his social media presence to direct the ire of a potentially violent following against one of his perceived enemies, that speech too should be dealt with as speech that is no longer protected.
The rhetoric of January 6th that precipitated the attack on our nation’s capital, was not protected speech. The thinly veiled threats against a judge and staff are not protected speech. Unsubstantiated lies that understandably damaged a voting tabulation company, were not protected speech. Whether it is speech from a political platform or a tweet on social media, speech that places others at risk in these violent times should not be tolerated. It’s time for sanity to prevail over lunacy.
Postscript: Predating the Brandenburg decision was Whitney v. California from 1927, where the primary holding was, “Despite the First Amendment, a state can use its police power to punish speech that undermines the public welfare by inciting criminal activity, disturbing the peace, or advocating the violent overthrow of the government.” It further stated, “The restrictions on government action under the First and Fourteenth Amendments do not extend to situations in which speech creates a clear and present danger of an evil outcome.”
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