Legal Definitions - advocacy of illegal action

Advocacy of illegal action refers to speech that encourages or promotes unlawful behavior. While the First Amendment to the U.S. Constitution broadly protects freedom of speech, this protection is not absolute. Speech that advocates for illegal action can, under specific circumstances, be restricted and even punished by law.

The key legal standard for determining when such speech loses its First Amendment protection is known as the Brandenburg Test. Developed by the Supreme Court, this test dictates that speech advocating illegal action can only be restricted if it meets two strict conditions:

• The speech must be intended to incite or produce imminent lawless action. This means the speaker genuinely aims for people to commit illegal acts immediately or very soon.
• The speech must be likely to incite or produce such action. This means there is a high probability that the speech will actually cause people to engage in immediate illegal behavior.

Essentially, for speech to be unprotected, it must be a direct call to immediate illegal action that is also likely to succeed in prompting that action. Abstract discussions about illegal acts, general advocacy for future unlawful conduct, or speech that merely teaches about illegal methods without directly inciting immediate action, are generally still protected under the First Amendment.

Here are a few examples to illustrate this concept:

• Example 1: Direct Incitement at a Protest

  During a heated public demonstration outside a government building, a speaker on a megaphone shouts to the agitated crowd, "They won't listen to us! Let's break down these doors right now and demand answers!" The building's entrance is visible and accessible, and the crowd begins to surge forward. In this scenario, the speaker's words could be considered unprotected advocacy of illegal action because there is clear intent to incite immediate trespassing and property damage, and given the context of an agitated crowd and accessible target, it is highly likely to produce such action.

• Example 2: Abstract Discussion Online

  An online forum hosts a discussion thread where participants debate the effectiveness of various forms of civil disobedience, including blockading roads, to protest environmental policies. One user posts, "I believe that blocking major highways is the only way to get attention for climate change. We should all consider doing this sometime in the future." This statement, while discussing illegal action, is likely protected speech. It is an abstract discussion about a potential future action, lacking the intent to incite imminent lawless action, and there's no immediate likelihood that this single post will cause people to go out and block highways right away.

• Example 3: Educational Workshop on Tactics

  A community group organizes a workshop titled "Historical Tactics of Resistance," where they discuss and analyze past instances of civil disobedience, including sit-ins and occupations of public spaces, which involved illegal trespassing. The facilitators explain the methods used, the legal consequences faced by participants, and the historical impact. Although illegal actions are discussed, the workshop's purpose is educational and analytical, not to directly incite the attendees to immediately engage in such activities. Therefore, this speech would typically be protected, as it lacks the intent and likelihood to produce imminent lawless action.