Thursday, February 11, 2021

Speaking the Unspeakable: The First Amendment & Violent Overthrow

Is it Lawful to Advocate Violent Overthrow of the Government?

The legal system of the American Federal Republic, arising from the libertarian principles of the Declaration of Independence, has a number of unique features, not widely shared in practice in other large nation states.

These include, preeminently, the First and Second clauses of the Bill of Rights -- the guarantees that the government will be strictly limited regarding our most important personal liberties.

The Founders of the Federation were gentlemen who were among nearly the last generation to receive a classical education, including literacy in Latin and Greek, with an emphasis on the history of the Roman Republic and its convoluted legal system.  They intended that the American Republic was to be established on a stronger tradition of law, the English Common Law, than had been possible for the Romans.  The Romans did not keep their republic -- rather, they lost their republican liberties, becoming mere subjects of an imperial system -- also a clear and present danger for Americans.

When Benjamin Franklin was asked, at the end of the Constitutional Convention of 1787, what type of government was being planned, he is reported to have said, "A republic, if you can keep it."

The Founders knew history and determined the new American Republic would not make the mistakes of the earlier republics.  Here, we were promised, the rule of law would restrain the power of politicians.

Thus the Bill of Rights, with its First Clause asserting the individual's right to free speech and communication, religion, association and petition and its Second Clause recognizing the individual's right to keep and bear arms (which is what guarantees the First) were imposed on the new government through general popular support as amendments to the original Constitution of 1787.

The American legal system developed based on a fundamental law in which the Legislative Power is told it "shall make no law" regarding certain subjects:  the subjects listed in the First and Second clauses. These have, as the Supreme Court earlier remarked about the First, a "preferred position" in our legal system.

This introduction leads me to the purpose of this blog entry.  These strong Constitutional Protections have actual application in the case law.  For example, regarding (IMHO) one of the most difficult areas of First Amendment jurisprudence -- the area of extreme political speech.  

Specifically, the question is, when is it  lawful, under American jurisprudence,  for an individual to engage in speech actually calling for the violent overthrowing of the government.  

The events of 6 January 2021, when large numbers of citizens visited the Capitol to "speak truth to power" and Congress reacted with fear and loathing, abandoning the Capitol, show this is not just an academic question.

Yes, the courts have considered this question.  Given the history of the revolutionary movements of the 19th and 20th Centuries, there is well developed law regarding this question.

That law was aptly reviewed by President Trump's lawyers in their Brief against the Second Trump Impeachment.  

The full Brief is here:

Below are several pages from the Brief which review the cases on Advocating for the Overthrow of the Government [emphasis added]. Based on the case law, my conclusion is that it is lawful to advocate even the "necessity" of the use of violence to overthrow the government.  A speaker may even "incite" violence against government, so long as incitement to immediate violence does not occur. 

"The fatal flaw ... is that it seeks to mete out governmental punishment ... based on political speech that falls squarely within broad protections of the First Amendment. Speech and association for political purposes is the kind of activity to which the First Amendment offers its strongest protection.125 Restrictions placed on freedom of speech are evaluated “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”126 

Thus, “[o]ur First Amendment decisions have created a rough hierarchy in the constitutional protection of speech” in which “[c]ore political speech occupies the highest, most protected position.”127 The Supreme Court has further acknowledged that “[t]he language of the political arena . . . is often vituperative, abusive, and inexact.”128 A rule of law permitting criminal or civil liability to be imposed upon those who speak or write on public issues and their superintendence would lead to “self-censorship” by all which would not be relieved by permitting a defense of truth. “Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so . . . . The rule thus dampens the vigor and limits the variety of public debate.”129 In only a few well defined and narrowly limited classes of speech may the government punish an individual for his or her words.130

Even political speech that may incite unlawful conduct is protected from the reach of governmental punishment. Indeed, “[e]very idea is an incitement,’ and if speech may be suppressed whenever it might inspire someone to act unlawfully, then there is no limit to the State’s censorial power.”131 The government may not prohibit speech because it increases the chance an unlawful act will be committed “at some indefinite future time.”132 Rather, the government may only suppress speech for advocating the use of force or a violation of law if “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”133

In Brandenburg v. Ohio, the Supreme Court formed a test that placed even speech inciting illegal conduct within the protection of the First Amendment.134 In that case, a leader of the Ku Klux Klan was convicted under an Ohio criminal syndicalism law.135 Evidence of his incitement was a film of the events at a Klan rally, which included racist and anti-Semitic speech, the burning of a large wooden cross, and several items that appeared in the film, including a number of firearms.136 The leader of the protest proclaimed that “[w]e’re not a revengent [sic] organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might be some revenge taken. We are marching on Congress July the Fourth, four hundred thousand strong.”137 

The Court held that, “the constitutional guarantees of free speech and free press do not permit [the government] to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”138 The Court explained that “the mere abstract teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.139

Thus, under Brandenburg and its progeny, government actors may not “forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”140 Absent an imminent threat, therefore, it is expressly within the First Amendment to advocate for the use of force; similarly, it is protected speech to advocate for violating the law..."


125 New York Times Co. v. Sullivan, 376 U.S. 254, 269 (1964)(The First Amendment “’was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’” (quoting Roth v. United States, 354 U.S. 476, 484 (1957)).

126 Watts v. United States, 394 U.S. 705, 708 (1969) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)).

127 R.A.V. v. St. Paul, 505 U.S. 377, 422 (1992( Stevens, J., concurring); see also Hill v. Colorado, 530 U.S. 703, 787 (2000)(Kennedy, J., dissenting)(“Laws punishing speech which protests the lawfulness or morality of the government’s own policy are the essence of the tyrannical power the First Amendment guards against.”); Citizens United v. Federal Election Comm’n, 588 U.S. 310, 349 (2010)(“If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”)

128 Watts, 394 U.S. at 708 (distinguishing between “political hyperbole” and “true threats”) (citing Linn v. United Plant Guard Workers of America, 383 U.S. 53, 58, (1966)).

129 New York Times, 376 U.S. at 279.

130 Gooding v. Wilson, 405 U.S. 518, 521-22 (1972). 

131 Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 580, 121 S.Ct. 2404, 2435, 150 L.Ed.2d 532 (2001)(emphasis added)(quoting Gitlow v. New York, 268 U.S. 652, 673, 45 S.Ct. 625, 69 L.Ed. 1138 (1925)(Holmes, J., dissenting)).

132 Ashcroft v. Free Speech Coal., 535 U.S. 234, 253–54 (2002)(quoting Hess v. Indiana, 414

U.S. 105, 108 (1973)(per curiam)).

133 Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (emphasis added) (per curiam).

134 395 U.S. at 447.

135 Id. at 445.

136 Id. at 445-46.

137 Id. at 446.

138 Id.

139 Id. at 448.

140 Id.

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