Academic journal article Brigham Young University Law Review

How to Incite Crime with Words: Clarifying Brandenburg's Incitement Test with Speech Act Theory

Academic journal article Brigham Young University Law Review

How to Incite Crime with Words: Clarifying Brandenburg's Incitement Test with Speech Act Theory

Article excerpt


Since the early 1900s, the Supreme Court has grappled with how to distinguish protected speech from speech that incites others to lawless action. The Court set forth the current standard for determining whether speech falls into the latter category in the 1969 case of Brandenburg v. Ohio.1 There, the Court held that advocacy of violence is protected unless it "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."2

The Brandenburg test is the product of a rich history of judicial debate.3 Unfortunately, the test is still unclear in some respects. For example, it is not clear how imminent the resulting unlawful conduct must be to satisfy Brandenburg. The Court's subsequent opinion in Hess v. Indiana,4 for example, suggested that imminent may mean within a matter of moments or hours, though it did not expressly provide any specific time frame.5 This lack of guidance has led to confusion among lower courts. For example, some courts require immediacy, while at least one court has suggested that imminent encompasses conduct as far out as five weeks in the future.6 Many scholars have already made significant headway in resolving this issue, suggesting that the word imminent be defined as a matter of days.7 Much has been said on this issue already, and this Comment adopts the more relaxed definition of imminence without further explanation.8

Another aspect of the Brandenburg test that remains unclear, and the one this Comment endeavors to clarify, is the requirement that the speech be "directed to" inciting imminent lawless action. This Comment contends that speech act theory, a linguistic philosophy that was first made famous in J.L. Austin's book How to Do Things with Words, can help clarify what it means to direct speech to inciting crime.

Part II of this Comment discusses three Federal Court of Appeals cases where the courts had to determine whether particular online postings were directed to inciting imminent lawless action. In each case, the courts decided (in a more or less conclusory fashion) that the speech in question was not directed to inciting imminent crime. Part III of this Comment introduces speech act theory and the concepts of illocutionary force and perlocutionary effect. it then proposes that focusing on an utterance's illocutionary force can help courts identify what kinds of speech are directed to inciting lawless action. Part IV then analyzes the evolution of the incitement doctrine through the lens of speech act theory, pointing out that early supreme Court incitement cases tended to focus only on the speech's perlocutionary effect, and concluding that Brandenburg is best read as requiring an inquiry into an utterance's illocutionary force and its perlocutionary effect. Part V returns to the cases discussed in Part II to demonstrate how a court would go about analyzing an utterance's illocutionary force.


A. Antiabortion Radicals: Planned Parenthood of Columbia/Willamette, Inc. v. American Coalition of Life Activists

Beginning around 1993, antiabortion radicals distributed a series of "wanted" posters containing the names, photographs, and addresses of abortion providers. 9 The posters accused the doctors of "crimes against humanity" and stated that they were "armed and extremely dangerous to women and children."10 Between 1993 and 1994, three physicians were killed as a result of the posters.11

In 1995, the antiabortionists uploaded approximately 200 more physicians' names to a website, again including their photographs and addresses.12 Some of the physicians' names were crossed out, others were in grey font, and the rest were in black font. The following legend accompanied the files: "Black font (working); Greyed-out Name (wounded); Strikethrough (fatality)."13 In other words, the website recorded murders and other violent attacks against the abortion doctors. …

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