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Incitement and Current Law

by Chauncey Tinker – 3 Apr 2019

[Third in a series of posts on the subject of the limits of freedom of speech. The second post was on the subject of freedom of religion and can be found here]

The aim here is to look at the current laws around incitement in the US and the UK to see where I disagree with current limits on freedom of speech. Again, as I did for harassment, we need to look both at borderline cases and the most extreme cases in order to decide what should be legislated against.

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 somewhat 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 set out as clearly as possible in the law.

US LAW

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

IMMINENT HARM

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. The ruling:

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.

There is also the possibility that a general incitement to murder could inspire a murderer some time in the future, as POSSIBLY happened in this case (article from the New York Post):

Hate imam preached executing gays at Orlando mosque before massacre

FIGHTING WORDS AND MERELY 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, the word offensive is very subjective.

A case in 1942 at the US Supreme Court apparently established the doctrine of “fighting words”. The case concerned a Jehovah’s Witness called Walter Chaplinsky who was preaching on a sidewalk in 1940, he made statements including a claim that organized religion was a “racket”. A large crowd assembled and began to block the roads, and he was arrested.

Chaplinsky v. New Hampshire

An article at the Freedom Forum Institute commented on this and other cases:

Fighting words

In summary the author concluded:

The varying decisions in the lower courts – and the complexity of the qualified-immunity doctrine – show that judges struggle with whether profane speech crosses the line from protected criticism or protected expression into the realm of unprotected fighting words.

My conclusion is that no clear line can be drawn in such cases, and thus I would argue that mere “fighting words” should never be legislated against.

PEACEFUL PROTEST

A case such as the Chaplinsky case also has implications for the right to peaceful protest, in effect a peaceful protest was shut down by mob rule. Obviously it is tempting for the authorities to arrest the “troublemaker” who is making the statements that are causing the offence, particularly as arresting a mob is much more difficult than arresting a single individual. However it could be that what is unacceptable today becomes the norm in the future, the importance of allowing peaceful protest cannot be underestimated, and perhaps the outnumbered protestor has something very important to say. A different approach might be simply to allow peaceful protest but to require advance notice is given to the authorities in case there is likely to be a significant reaction to the protest, then the police can plan ahead to have a sufficient presence to prevent a riot.

For an example at the extremes, 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. The actions of the Westboro Chapel group in the US for example led to a new state law:

Westboro Baptist Church – Laws limiting funeral protests

In this case a specific law was created which prevented protests within a certain distance of the funerals of soldiers. A different approach using existing law might have been to use an injunction to prevent a particular person approaching funerals of soldiers. These types of approaches such as the use of an injunction seem to me to be much preferable to placing further limits on freedom of speech. Placing further limits on freedom of speech is likely to have unintended consequences far beyond the particular case that prompted the change in the law.

UK LAW

The UK law on incitement was changed in the Blair era with the introduction of the Serious Crime Act:

Encouraging or assisting a crime in English law

From the CPS:

Inchoate offences

According to the above advice, it is not necessary for the incited offence to be actually carried out.

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

CONCLUSION

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.

I think mere “fighting words” should never be legislated against as this is far too vague and subjective a term.

In the next post I will propose a new framework to deal with incitement, as I don’t think we have anything close to clarity in our current UK law.

 

ELSEWHERE ON THE WEB:

From Law on the Web (regarding UK law):

The Right to Peaceful Protest

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