By Katherine Wahl

“Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”[1]

Free Speech is a constitutional right.[2]  The Supreme Court has discussed the First Amendment at length in many of its opinions, but as the way we communicate with each other changes, do the protections of the First Amendment adapt to those changes?[3] The Court has not yet decided a case on the issue of whether a statement made on social media that would be considered incitement had it been made in person would satisfy the Brandenburg test.[4] The Court appears to be leaning toward accepting such a change based upon its decision in Packingham v. North Carolina, in which the Court acknowledged the importance of social media to an individual’s expression of their free speech rights.[5] Packingham indicates that statements made on social media platforms can be “incitement” and thus unprotected speech that the government may regulate.[6]

The Court has identified several categories of speech that are not protected under the First Amendment.[7] Notably, incitement is not a protected category of speech.[8] The prevailing test for what constitutes incitement is the Brandenburg test.[9] The Court in Brandenburg v. Ohio outlined what speech is considered incitement, and thus unprotected.[10] Under the Brandenburg test, speech is not protected if it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”[11]

The issue with arguing that social media is incitement is that, while a social media post may advocate for an immediate lawless action, the post would not be considered incitement unless it also was likely to produce such an action.[12] Social media posts can reach a diverse group of people, some angry and motivated to take action and some who are not. In this respect, individuals who are physically present have the ability to immediately take action in response to the speech, whereas viewers of social media arguably do not. 

However, even in cases in which speeches were made in person, the Court has not always found the immanency needed to produce incitement.[13] In Hess v. Indiana, the Court reversed a disorderly conduct conviction.[14] The Court found that the speech, either, “We’ll take the fucking street later,” or, “We’ll take the fucking street again,” given in front of 100 to 150 people was not sufficiently imminent to constitute unprotected speech.[15] Similarly,  in Terminiello v. Chicago, the Court still found in favor of free speech and invalidated a Chicago ordinance that prohibited fighting words, finding that the ordinance was too broad.[16] The speech in Terminiello was given in person to a group of individuals who were “angry and turbulent,” but the Court still found that stirring people to anger was within the bounds of the First Amendment.[17]

But even so, it seems that the Court would, nonetheless, be willing to consider a social media post incitement should the appropriate fact pattern arise. In Packingham, the Court struck down a North Carolina law that prohibited convicted sex offenders from accessing “a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages.”[18] The State argued that the law was intended to protect children from predators; however, the Court found that the statute was overbroad because the state failed to demonstrate how the breadth of the law was necessary to serve the State’s interest.[19] The Court stated that “prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.”[20] In its dicta, the Court stated social media sites like Facebook “can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. They allow a person with an Internet connection to “become a town crier with a voice that resonates farther than it could from any soapbox.”[21] 

Applying the dicta of Packingham, if social media is considered the new town square, there is, seemingly, no difference between incitement online and incitement in person.[22] So long as individuals seeing the post are motivated to take immediate action, the immanency of taking action from the town square and the new digital town square would be equivalent, and thus incitement could occur online.[23]

Although social media companies may privately police content on their platforms, unprotected speech is not out of the government’s reach to regulate.[24] For example, in Elonis, the Court stated that the government may regulate true threats online, although it reversed the defendant’s convictions for making such threats because the jury instructions failed to instruct the jury that, to convict the defendant, it must have found that he had intended to inflict the harm.[25] Thus, if the Court expands its interpretation of the First Amendment, the government could restrict more individual speech online.[26]

Packingham does not guarantee that social media posts containing calls to an illegal action will be treated as incitement because, as Hess and Terminiello demonstrated, the bar for immanency of subsequent illegal action is a high bar to meet.[27] However, Packingham does suggest that the government has more power to regulate speech online.[28] Whether the expansion of government regulation of speech online is a positive or negative change hinges on whether we, as a society, place greater value on restricting potentially offensive or dangerous speech or encouraging the free exchange of ideas in the new digital marketplace.[29]

[1] U.S. Const. amend I.

[2] Id.

[3] See generally Brandenburg v. Ohio, 395 U.S. 444 (1969) (stating that incitement is unprotected speech); Schenck v. United States, 249 U.S. 47 (1919) (discussing the First Amendment’s freedom of speech at length for the first time and establishing the “clear and convincing danger” test). 

[4]  See Brandenburg, 395 U.S. at 447 (stating that the test for incitement is whether the speech is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action”).

[5] See Packingham v. North Carolina, 137 S. Ct. 1730, 1734 (2017).

[6] Id.

[7] See Miller v. California, 413 U.S. 15, 26-27 (1973) (holding the First Amendment does not protect obscenity); Brandenburg, 395 U.S. at 447 (holding the First Amendment does not protect incitement); Chaplinsky v. New Hampshire, 315 U.S. 568, 572-73 (1942) (holding the First Amendment does not protect “fighting words”).

[8] Brandenburg, 395 U.S. at 447.

[9] Id.

[10] Id. (holding the First Amendment does not protect speech that advocates illegal action and is likely to produce such action).

[11] Id.

[12] Id.

[13] See Hess v. Indiana, 414 U.S. 105, 108 (1973).

[14] Id. at 109.

[15] Id. at 107-09 (finding “the statement could be taken as counsel for present moderation; at worst, it amounted to nothing more than advocacy of illegal action at some indefinite future time”).

[16] See Terminiello v. Chicago, 337 U.S. 1, 3 (1949) (overruling a statute prohibiting “misbehavior which violates the public peace and decorum” because it was overbroad).

[17] Id. at 3-5.

[18] See Packingham v. North Carolina, 137 S. Ct. 1730, 1734 (2017).

[19] Id. at 1737.

[20] Id.

[21] Id. (citing Reno v. American Civil Liberties Union, 521 U.S. 844, 870 (1997)).

[22] Id. 

[23] See Hess v. Indiana, 414 U.S. 105, 108 (1973).

[24] See Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) (holding that all speech is not protected and that the government may regulate unprotected speech).

[25] See generallyElonis v. United States, 135 S. Ct. 2001, 2013 (2015) (finding that that mental state of “negligence is not sufficient to support a conviction under 18 U.S.C. § 875(c)”).

[26] Id.

[27] See Hess, 414 U.S. at 108; Terminiello v. Chicago, 337 U.S. 1, 5 (1949).

[28] See Packingham v. North Carolina, 137 S. Ct. 1730, 1734 (2017).

[29] Id. at 1737.

Posted in

Share this post