MBE Rules · Constitutional Law
Incitement
Brandenburg v. Ohio
The rule
Advocacy of illegal action is protected unless it is directed to inciting imminent lawless action and is likely to produce such action.
In plain English
The rule of incitement protects speech that advocates for illegal actions unless that speech is specifically aimed at provoking immediate unlawful behavior and is likely to succeed in doing so. In other words, for speech to lose its protection, it must create a clear and present danger of imminent lawless action.
Worked example
During a protest, a speaker urges the crowd to break into a nearby store and steal items. If the speaker's words are seen as directly inciting the crowd to commit theft right then and there, and it is likely that the crowd will act on that incitement, the speech may not be protected. Therefore, the speaker could face legal consequences for incitement.
Memory hook
Incitement: Speak now, or forever hold your peace—unless it's illegal and imminent!
The trap
Exams often present scenarios where students must distinguish between mere advocacy and direct incitement, which can be subtle. Students might confuse protected speech with incitement if they overlook the requirement for immediacy and likelihood of action.
How examiners test it
Questions on incitement typically involve hypothetical speeches or statements made in public settings, requiring candidates to analyze whether the speech meets the criteria for unprotected incitement. Look for cues about immediacy and the likelihood of lawless action to guide your analysis.
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