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Defining The Line Between Free Speech And Inciting Violence

Win McNamee
Getty Images
A pro-Trump mob stormed the U.S. Capitol Building on Jan. 6 in Washington, D.C. Congress later held a joint session to ratify President-elect Joe Biden's 306-232 Electoral College win over President Donald Trump.

As a violent mob tore through the U.S. Capitol on Jan. 6, questions about what could be done to those who were seen as inciting the crowd arose. While the constitution prohibits the government from taking action against those exercising their freedom of speech or freedom to peaceably assemble, there are laws against inciting violence.

Paul Nolette is a professor and chair of the department of political science at Marquette University and he says the question of where free speech ends and inciting violence begins is a question courts have dealt with for years.

“Under the current law and the interpretation of the first amendment by the Supreme Court, there’s really not a whole lot that fits into that category of incitement,” says Nolette.

According to a decision in the case of Brandenburg v. Ohio, the speech has to lead directly to inciting imminent lawless action — which Nolette says is a very difficult standard.

While the attack on the Capitol was lawless and dangerous, the ability to link it back to a single statement from, for example, President Donald Trump or a Republican lawmaker, is hard to prove legally.

Nolette believes that lawmakers, like Senator Ron Johnson who held a senate hearing into baseless allegations of election fraud, need to understand that just because they might not face legal trouble, their words have real consequences.

“Even if they aren’t in danger of being criminally prosecuted for their words, you know, reaching that Brandenburg test of imminent lawless violence that their words are causing. I think it’s important that they think about the consequences of their words,” he says.

One place where the bar is much lower to take action against speech is on social media sites. These companies are not bound under the first amendment to protect speech and the federal government has offered little regulation to guide companies on how to police speech on these sites.

Social media platforms like Facebook and Twitter have removed President Trump’s accounts following his response to his supporters’ attack on the Capitol.

Nollette expects that social media regulation could become a bipartisan issue as lawmakers from both sides have expressed interest in passing more specific legislation for these companies. As well, the companies themselves have asked the government for more direction.

“I think [COVID-19] issues will take priority, I think, for the Biden administration but you know, lawmakers can walk and chew gum at the same time and so I think they’re going to be holding numerous hearings about the role of social media companies and big tech,” he says.

From 2020 to 2021, Jack was WUWM's digital intern and then digital producer.