Incitement and Current Law

[Second in a series of 4 posts about “Freedom of Speech”]

Note that incitement can be applied to any law including trivial laws. For simplicity I am thinking here about only serious crimes such as inciting violence, rape, slavery and child abuse.

The exact dividing line between what constitutes incitement and what should be considered protected speech has never been set in stone. Court rulings have moved that dividing line from time to time. This is to be expected because deciding exactly what a person intends by what they say is always going to be subjective. Therefore as long as we rely on a legal system for justice, and we accept that some incitement speech must be legislated against, we will have to accept that in some degree a judge or jury will ultimately decide where that dividing line is in individual cases. All we can do is to try and give the most comprehensive guidance for those making those decisions, and to ensure that this guidance is enshrined in law.

US LEGAL STATUS OF PROTECTED SPEECH

It seems that the exact definition of what constitutes protected and unprotected speech according to the US legal system has been only established over time. The US Constitution does not provide an exact definition.

It seems that only relatively recently thanks to a US Supreme Court ruling in 1969 was the qualification of “IMMINENT” added to the definition of what incitement is unprotected.

Brandenburg v. Ohio

I have to say I find this rather odd. What if someone incites someone to commit a crime say on a specified date in the future? I suppose the delay does make the crime slightly less likely, as more circumstances could intervene to prevent it. We also have the problem that a general incitement to murder could inspire a murderer some time in the future, as POSSIBLY happened in this case:

http://nypost.com/2016/06/14/hate-imam-preached-executing-gays-at-orlando-mosque-before-massacre/

FIGHTING WORDS AND MERELY OFFENSIVE (OR GROSSLY OFFENSIVE) SPEECH

“Fighting words” are currently unprotected in the US as they are regarded as a form of incitement. I feel generally that this is incorrect because people don’t have to respond to mere words, however provocative. Trying to limit speech of a merely offensive nature runs a very grave risk of fundamentally endangering the freedom of speech. What is offensive speech to some may be considered a good argument by others. However there are some particularly challenging scenarios.

For example, consider this scenario. If someone died, and then someone else insulted the deceased person’s relatives, say at the funeral, then that would be a bit of a thing. It might lead to a fight. I’m not sure that ordinarily I would agree with the idea of Fighting Words being unprotected, but a case such as this is surely pushing things to the limits. The actions of the Westboro Chapel group in the US for example led to new law:

https://en.wikipedia.org/wiki/Westboro_Baptist_Church#Laws_limiting_funeral_protests

UK LAW

The UK law was changed in the Blair era:

https://en.wikipedia.org/wiki/Encouraging_or_assisting_a_crime_in_English_law

http://www.cps.gov.uk/legal/h_to_k/inchoate_offences/

As far as I can glean from these links there is no requirement in UK law for the incitement to be immediate.

CONCLUSION

The main difference between UK and US law currently seems to be the requirement of imminent harm. I think protecting speech that encourages violence in a non-imminent way is a mistake, as seen in the example of the Orlando massacre of 49 people in a gay nightclub. In the next post I will attempt to create a different framework.

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