Free speech and the Brandenburg dilemma

We know that free speech is not an absolute right. There are some limits that even the most tolerant societies have imposed in order to (say) protect children. In the US, the limits to what adults can say is usually judged according to the landmark US Supreme Court decision in the 1969 case of Brandenburg v. Ohio.

Commenter drr1, in response to an earlier post, gave a excellent summary of what it allows and its possible applicability to the anti-Islam film that I will reproduce in its entirety.

Brandenburg is the controlling authority, but the “incitement” test the Court produced there is rather demanding, and it has been narrowly construed over the years. In order for speech to qualify as incitement, and thus to be “unprotected” under the First Amendment, the speaker must have had a purpose to incite or produce imminent lawless action, and the speech must be likely to incite or produce such imminent lawless action. The key element here is imminence. Unless the speaker acts to produce lawlessness right now, the speech is likely to get a pass under the First Amendment. The Supreme Court and lower courts have narrowly construed the Brandenburg test over the years, consistent with the First Amendment notion that the remedy for speech is more speech, not the heavy hand of the state.

As to whether Brandenburg might have any application here – that is, whether this speech might be considered unprotected incitement, the answer is no. I cannot see a United States court ruling that the speaker(s) acted here with a purpose to incite or produce imminent lawless action. They may have known that violence was quite likely to follow; indeed, I’m willing to assume that that was at least one of the purposes of the speech. That, by itself, doesn’t suffice under Brandenburg. The speech will be protected because it cannot be shown that this speech incited or produced imminent lawless action.

In short, we’ve decided that we are – at times – willing to risk the consequences of speech that others find offensive. That those consequences come to pass does not alter the constitutional bargain. We mourn those senselessly killed or harmed, and we exercise our freedom of speech to display to the world the barbarism of those who are responsible, including those who uttered the offending words in the first instance.

As you might expect, Glenn Greenwald has written extensively on this and he would agree that in Brandenburg, the court set a very high bar indeed for when the government can limit speech. I have also agreed with this view.

But George Washington University law professor Jonathan Turley, also a robust defender of free speech, worries that the Brandenburg standard risks being misused by the Obama administration in its attempt to draft international treaty language sponsored by the Organization of Islamic Countries. Those countries have sought to bring offence to religious sensitivities, or blasphemies, under the umbrella of hate speech, sensing that outlawing ‘hate speech’, which is usually speech targeting vulnerable minority groups, is more palatable to western societies. He argues that the Brandenburg standard, which the Obama administration seems to be using to draft compromise language, can be abused since it could be used to argue that if one knows that certain language or acts will inflame people enough to cause them to riot and murder, then that might meet the threat of causing ‘imminent’ danger and thus be censorable, even if you are not directly inciting people to violence. He says,

The Brandenburg standard is controversial in the United States because of its ambiguity and chilling effect on speech. Placed in the hands of a country with a blasphemy law, it legitimates religious orthodoxy and limitations on free speech and the free exercise of religion. Countries like Saudi Arabia do not even allow public worship by other faiths. They are not going to embrace the free speech sentiments of the resolution. Rather they will continue the stated purpose of getting the West to embrace limitations of free speech in the name of religion.

He says that this would give the most intolerant people the right to decide what can and cannot be said merely by threatening violence if their sensitivities are not respected. So you could be found to be guilty of hate speech merely for saying something that in the past has caused some religious people to react in fury.

The biggest victory of the OIC came in 2009 when the Obama administration joined in condemning speech containing “negative racial and religious stereotyping” and asked states to “take effective measures” to combat incidents, including those of “religious intolerance.” Then, in March, the U.S. supported Resolution 16/18′s call for states to “criminalize incitement to imminent violence based on religion or belief.” It also “condemns” statements that advocate “hostility” toward religion. Although the latest resolution refers to “incitement” rather than “defamation” of religion (which appeared in the 2005 resolution), it continues the disingenuous effort to justify crackdowns on religious critics in the name of human rights law.

The OIC has hit on a winning strategy to get Western countries to break away from their commitment to free speech by repackaging blasphemy as hate speech and free speech as the manifestation of “intolerance.” Now, orthodoxy is to be protected in the name of pluralism — requiring their own notion of “respect and empathy and tolerance.” One has to look only at the OIC member countries, however, to see their vision of empathy and tolerance, as well as their low threshold for anti-religious speech that incites people.

International treaties that violate the US constitution are invalid in the US so the original intent of the Brandenburg ruling will likely hold sway here. But such treaty language could well become the standard in countries that do not have clear First Amendment-type constitutional protections and a robust tradition of protecting free speech, and thus could prove to be very chilling indeed.


  1. says

    There are some limits that even the most tolerant societies have imposed in order to (say) protect children.

    Such as? I assume you’re referring here to the laws against teaching children religious nonsense?

  2. Pierce R. Butler says

    The Roberts-Scalia court may not look so favorably on the peons’ purported right to say whatever they want as did those degenerate hippies of 1969.

    Are there any relevant cases currently in the SCOTUS pipeline?

  3. sunny says

    There are some limits that even the most tolerant societies have imposed in order to (say) protect children.

    The Islamist bullies are a bit like children. Unfortunately their tantrums lead to the deaths of people.

  4. sqlrob says

    International treaties that violate the US constitution are invalid in the US

    [Citation Needed]

    Treaties are commonly used to do an end-run around the Constitution. A direct reading of the Constitution makes it pretty ambiguous as well.

    This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;

  5. Mano Singham says

    I thought that this had been established in the 1957 case Reid v. Covert.

    While treaties are the rule of the land, if it conflicts with the constitution, then the constitution takes precedence.

  6. baal says

    Adding to the scope of hate speech strikes me as an end run for blasphemy laws. Regardless of the words on the page, the cases will be brought no matter how frivolous in order to stop folks from speaking against their religion.

    There is a practical problem with say banning the awfully produced (and iffy factual merit) of the recent anti-Islam long form movie trailer. There is a large body of equivalent material with a fuzzy edge as to what’s similarly bad or where to draw the line on merit.

  7. sqlrob says

    Thank you, I wasn’t aware of that precedent.

    The WTO treaties are certainly running wild over the Constitution though (see: DMCA, TPA)

  8. yonnie says

    We already have laws on the books about inciting mobs to riot! The muslim clerics stand before the mobs during the Friday prayers and incite them to riot. Then they have the hutzpah to blame infidels (us) for the destruction that results!

    “The remedy for speech is more speech” (as quoted from above article). The remedy for inciting a mob to riot and murder is to arrest and prosecute the agitator including capital punishment when the mobs kill and restitution for damages on destroyed property.

    So, why do we need more new laws when we have good ones already?

    Why are the clerics who incite murderous mayhem still free and breathing?

  9. left0ver1under says

    The only limit should be on speech intended to incite. Instead, governments and religions seek to silence speech that offers insight.

    These attempts at ruling what is free speech are horrendous. It’s not being done to preventing advocations of violence, it’s being done to silence dissent and protect the over-emotional feelings of religions. If their religions and positions had merit, they could withstand criticism; the desire to silence criticism shows that their positions have no merit.

    Take, for example, Thailand’s idiotic law that makes “insulting the king” an offense punishable by prison time. The king is a fink, and a coward, for allowing such a law to exist, and does not deserve respect. Some might say, “I dare you to say that IN Thailand!” No, I wouldn’t, because the government would use force in a cowardly attempt to enforce a ludicrous law. Just because the law is wrong doesn’t mean people won’t defend it (e.g. segregated schools in the 1960s and before).

    Those who demand respect are those who least deserve it. Regardless of whether it’s “call the judge ‘your honour'”, “respect your elders”, “respect the presidency” or “respect my religion!”, they’re all cowards hiding behind robes and titles. They can ask you or I to respect their position, but they have no business asking for undeserved reverence.

    As we saw with Bush, Obama and Scalia in the US and catholic bishops covering for pedophile priests, they don’t even respect their own positions that they want reverence for. The muslims are no different, and quite often, they’re worse.

  10. drr1 says

    I agree with Prof. Turley (and with you, Prof. Singham) that the Obama administration is flirting with danger. But I don’t know that I agree with Prof. Turley about Brandenburg being controversial here because of its speech-chilling effect. Frankly, as a limit on speech or expression here in the States, Brandenburg is pretty weak sauce. If Brandenburg can’t be used to silence the likes of Sam Bacile, who I’m willing to stipulate was out to provoke violence (and, as I opined in earlier comments you quoted above, it can’t), then Brandenburg hardly can be described as speech chilling. On the contrary, Brandenburg was designed to be a speech-protective rule that reflects the democracy-reinforcing goals of the First Amendment Speech Clause.

    I think Prof. Turley is correct for this reason: put Brandenburg, or almost any other rule of law for that matter, into the hands of extremists, and it can be turned into an instrument of repression and intimidation. The goal of extremists, after all, isn’t to promote the free flow of information. Knowledge and information are antithetical to their real ends. A Brandenburg-type rule of law is, in this respect, no different from any other rule of law. In the wrong hands, it can and will become speech-chilling.

    I oppose the Obama Adminstration’s efforts on this score because President Obama — himself a former constitutional law professor — must know this. The Administration’s effort to export Brandenburg is not an attempt to export the rule of law, per se. There is a political goal afoot here, though I have to confess I’m not sure what that goal is.

  11. invivoMark says

    Which is legal in Czech and Japan.

    I think yelling “fire” in a theater is the go-to example most people have, but I don’t know if that’s illegal in every country.

  12. mikeym says

    That reminds me: During a Penn & Teller show, Penn deliberately dropped a flaming club he was juggling, and screamed “FIRE,” then pointed out that even shouting “Fire” in a crowded theater could pass First Amendment muster.

  13. Chiroptera says

    Laws passed by Congress and Administrative decisions by the President are also “running wild over the Constitution,” and a lot of it isn’t being struck down by the courts.

    It’s not that treaties are being used to get around the Constitution, it’s that much of our government just don’t have as high a regard for Constitutional limitations as we would like.

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