united-states us-constitution freedom-of-speech first-amendment
How can incitement of imminent lawless action not be constitutionally protected?
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<p>&quot;advocacy intended, and likely, to incite imminent lawless action, see Brandenburg v. Ohio, 395 U.S. 444 (1969);&quot;</p>
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<p>But doesn't the founding documents of the US enshrine the right of the people to overthrow a government when it no longer serves their democratic ends?</p>
<p>Are these two doctrines not at severe conflict? Is Revolution not intrinsically lawless action? For that matter how are offences like treason and conspiracy to overthrow the government or defying lawful authorities reconciled with this founding doctrine?</p>

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<p>How can incitement of imminent lawless action not be constitutionally protected?</p>
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<p>The short answer to your question is &quot;because the Supreme Court of the United States said so.&quot;</p>
<p>In <a href="https://www.thefire.org/first-amendment-library/decision/brandenburg-v-ohio/" rel="noreferrer"><em>Brandenburg v. Ohio</em></a> SCOTUS found that the Constitution protects speech that calls for lawless action in the abstract but does not protect speech &quot;directed to inciting or producing imminent lawless action and is likely to incite or produce such action&quot;.</p>
<p>The court's <em>per curiam</em> opinion seems to treat the decision as self-evident - it's quite short after discussing the facts of the case.</p>
<p>However, Justice William O. Douglas wrote a concurring opinion (his &quot;caveat&quot;) that discussed and was critical of previous decisions in such cases, including the use of the 'clear and present danger test', so his opinion is useful for a brief history of First Amendment judgments to that point (<em>Brandenburg</em>).</p>
<p>The Declaration of Independence is not law. Following &quot;a history of repeated injuries and usurpations&quot; and failures to reach political settlements it asserts a <em>moral</em> right to overthrow the tyranny of the British crown. It <em>alludes</em> to rights, it does not &quot;enshrine&quot; or create a legal right that the judiciary can interpret. Judges might refer to the Declaration in their judgments, not using it as legal authority but an articulation of fundamental values.</p>

<p>Revolution is not &quot;intrinsically lawless action,&quot; so it is not necessarily illegal to &quot;overthrow a government.&quot; Indeed, the U.S. Constitution provides democratic means by which the people can do just that.</p>
<p>As your comment noted, the Declaration of Independence says the people may &quot;alter or abolish&quot; the government. So if you are advocating to overthrow the government by voting in a new party or government, or if you are advocating to amend or even repeal the Constitution, you are not advocating a violation of the law, and your speech therefore remains protected.</p>
<p>But there is no law that says you may establish a new government through violent force or coercion. So if you are advocating to assassinate a government official or interfere with the peaceful transfer of power, you are advocating a violation of the law, and your speech may no longer be protected.</p>
