Incitement

I was driving in my car earlier when I caught my old pal Geoff Stone talking about the First Amendment on NPR. I didn't catch the whole thing, but it seemed to be regarding incitement. Not the incitement of a potentially offensive cartoon, but of political or religious leaders telling their followers to be violent.

Stone explained the U. S. understanding of freedom of speech. The standard for incitement is one's language must be very directly related to any crimes caused--the standard example is telling a heated mob to string someone up, and they immediately go out and do it.

Not that it was always this way (Stone went on). During World War One, people could be convicted of speaking out against the war. The idea, simply enough, was that the freedom of speech clause (rarely used up to that point in our history) didn't allow you to say things that could hurt morale and make people less likely to fight. Eventually a new understanding developed that saw this approach as incompatible with a robust national debate envisioned under the First Amendment.

Later, during the cold war, many Communists did, in fact, advocate the violent overthrow of our government. After many arrests, it became clear these people were being prosecuted not because they represented any true threat--that was the pretext--but because what they were saying was so odious.

Thus, we've developed a Frst Amendment law where incitement is such a high standard to meet, even Al Sharpton roams about freely.

Most other countries, even in the West, have looser standards. What I didn't hear from Stone was whether these other standards might, or could, make sense. And whether, if we saw enough "leaders" successfully counseling violence, we should change our understanding of the First Amendment yet again. If we shouldn't (and I expect Stone thinks we shouldn't--as do I), how would he argue against change before the Supreme Court, beyond merely stating precedent?