[lbo-talk] Free Speech (was: Memorial Day)

J. Tyler unspeakable.one at gmail.com
Wed May 30 08:06:49 PDT 2007

BklynMagus wrote:

> Okay, now I have a question. What makes a crime
> immanent? If some homophobe stirs up some guys to go
> beat up a queer and it takes 24 hours to find a queer,
> is that considered imanent?

The test focuses on the intent of the speaker ("where such advocacy is directed to...") and the circumstances under which he is speaking ("...and is likely to incite or produce such action"). Whether violence actually occurs as a result of his speech act would be immaterial to whether his speech act violated any criminal law. In your example, you would look to what the person's "advocacy" was directed to ("inciting or producing imminent lawless action"?) and then to the conditions under which he spoke ("likely to incite or produce such action"?). If both of those answers are yes, and there is a criminal law prohibiting that speech act already on the books, then he can be convicted of the criminal offense consistent with the First Amendment, regardless of whether any of his listeners ever caused violence (or even sought out to cause violence), although whether that occurred would probably be good evidence in favor or against the "likely to incite" prong of the First Amendment test. (In other words, if none of his listeners, after hearing his speech, sought to break any law or do any violence, that would constitute pretty good evidence he was not speaking under conditions that were "likely to incite or produce such action.")

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