There’s been a lot of political conjecture and debate in the news lately over what constitutes unprotected criminal speech. Most of the debate centers around the January 6 insurrection at the U.S. Capitol, and whether speeches to the crowd by then-President Donald Trump and others before the incident constituted criminal incitement of violence.
The United States Supreme Court has weighed in on this issue before and it turns out that the Court set the bar quite high for speech to rise to the level of criminal culpability. Most people can understand the aim here — too much regulation of speech teeters dangerously on the line of oppression and anti-democratic government action. So the Court has been deliberately narrow in its interpretation of the scope of criminal speech.
Brandenburg v. Ohio Concerned Attempted Criminal Charges for a Speech by a Ku Klux Klansman
In 1969, the Supreme Court heard Brandenburg v. Ohio, a case that concerned attempted criminal charges for a speech made by a member of the Ku Klux Klan. Unsurprisingly the speech included anti-black and anti-Semitic comments, but it also included anti-government rhetoric and an allusion that listeners should someday take “revengeance” (sic) on the federal government.
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Despite these hateful and incendiary comments, the Court found no basis for criminal culpability. In what is now referred to as the “Brandenburg Test,” the Court prescribed a two-pronged assessment of speech to determine whether free speech protections are lost.
One prong is that the speech must be likely to lead to imminent lawless action. I think most people would agree that this makes good sense. If the speech in question isn’t likely to incite criminal behavior, then criminal culpability wouldn’t naturally follow.
But the other key prong of the Brandenburg Test is that the speaker in question must intend to produce the imminent lawless action. And this is where things become far less clear.
The Court’s ruling in Brandenburg effectively makes criminal speech — speech that incites violence, rioting, or insurrection — a specific intent crime. But what is a specific intent crime?
A specific intent crime is a crime that requires what the law calls mens rea, which means “guilty mind” in Latin. In other words, specific intent crimes are those that can only be established if the accused can be shown to have intended the criminal conduct.
In the criminal justice system, some crimes are appropriately classified as specific intent crimes. For example, all “attempt” crimes, such as attempted rape or attempted murder, are specific intent crimes. After all, a person can’t rightfully be charged with attempt to do something he did not accomplish if he never actually intended to commit the act in the first place. The logic follows naturally from the circumstances.
But many other crimes are classified as general intent crimes, which simply means that the mens rea is not a requirement for conviction. Instead, all that is necessary is the actus reus or the “guilty act” itself. For example, second degree murder and various forms of manslaughter are classified as general intent crimes. What this means is that a person can still be convicted of murder even if he didn’t intend to kill anyone.
This might seem unjust at first, until you consider the role that basic carelessness can play in supporting culpability. For example, imagine you get in your car drunk. Due to your intoxication, you run over and kill multiple people along your drive. Now, did you intend to kill those people? No, not at all. But the fact remains that you were so reckless as to have a depraved heart and/or a callous indifference toward the value of human life. And as such, you could rightfully be charged with second degree murder, or at a minimum, DUI vehicular manslaughter. The lack of mens rea doesn’t matter here.
On the other hand, first-degree murder generally requires specific intent. This squares with our reasoning as first-degree murder is generally premeditated, requiring planning and preparation, components that clearly show intent.
So obviously there is a place in our criminal justice system for both specific intent and general intent crimes. But returning to the topic of speech, a question worth asking is: Does the Brandenburg Test appropriately classify criminal speech as a specific intent crime?
Surely if someone intends to incite violence, rioting, or insurrection, and succeeds, that person should be held criminally accountable for unprotected speech. But what about a circumstance when a person might lack such intent but nonetheless is so reckless or negligent with his words so as to cause the lawless action anyway? What then?
Criminal investigations into the January 6 Capitol riots and Trump’s speech are underway. But it’s not hard to predict what Trump’s lawyers will lean on as his key defense; they will say that he did not intend for his followers to commit lawless insurrection based on his words.
Yet, we can look at the actual words of Trump and his supporters and ask ourselves whether they were reckless. On that day, Trump, Rudy Giuliani, and others got up to the podium and talked about how their followers “have to fight.” They talked about needing to “show strength.” They talked about “trial by combat” and they talked about it being time for “kicking ass.”
Are these remarks likely to incite or produce imminent lawless action? Insofar as assault and battery are lawless, I think most people would agree they do. So one prong of the Brandenburg test is easily met here.
But under the current Brandenburg Test, unless it can be proven that Trump and his fellow speakers intended such actions to occur — a difficult thing to do without an admission or some documented evidence of planning — then criminal culpability cannot be established.
Yet, most reasonable people would agree that, even if intent was lacking, their comments were certainly careless and reckless, such that Trump and the other speakers should have known they would inspire violence even if they didn’t actually want that to happen.
If criminal speech was a general intent crime under the Court’s interpretation, that would be all that is necessary for a criminal conviction. But it’s not. At least not right now. Some look at this situation and say that it should be, but that doesn’t change the status quo.
What could change the status quo would be for the Supreme Court to revisit the issue of criminal speech and reconsider whether there might be circumstances — such as those that occurred at the U.S. Capitol on January 6 — when general intent would be sufficient for criminal accountability.
Of course we don’t want speech protections to be so narrowly tailored that people are no longer free to engage in the open expression of ideas. But we also don’t want the threshold for criminal speech to be set so high that anyone can incite violence and rioting and insurrection. And as long as they deny intent they are effectively immune from consequences. The key, of course, is balance.
The Capitol riot speech case and others will likely stay in the news for quite some time. We can only hope that the Supreme Court will continue to carefully weigh the balance of the issues in determining standards for criminal culpability moving forward.
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