Symposium Examines Incitement Doctrine 100 Years after First Free Speech Case and 50 Years After Brandenburg


This year marks the centennial of the first U.S. Supreme Court cases giving serious consideration to free speech, decided in response to convictions of dissenters who opposed American participation in World War I and allegedly incited interference with the war effort. The year 2019 also marks the 50th anniversary of Brandenburg v. Ohio, the seminal case that established the modern rule for when political speech can be suppressed for inciting lawless action and, conversely, when it is constitutionally protected.

Noted free speech scholars and practitioners gathered in April at the Law School for a day-long symposium sponsored by the Brooklyn Law Review to consider the history of incitement cases, their relevance in today’s world of social media and terrorism anxiety, and their enduring importance. The panel discussions, which spanned 1919 to 2019 and beyond, reflected on those foundational cases, examined the constitutional status of dissenting political speech today, and speculated about the future of free speech as the nation moves into its second century of serious protection for dissenting political speech.

“In an age of terrorism, social media and instant communication, the question of where to draw the line between strident—though protected—advocacy of violence and punishable incitement of the same takes on an almost existential significance,” said Professor Joel Gora, noted constitutional law scholar and author of several books and articles on First Amendment issues. “Will the ‘clear and present danger’ test fashioned in the horse-and-buggy days of 1919 still serve us well in the digital, global world of 2019? Brooklyn Law School was so fortunate to have some of the top scholars and advocates in the country discussing those vital issues spanning a century.”

The first panel, “The Historical Legacy of the Incitement Cases,” was moderated by Professor Christopher Beauchamp and included Thomas Healey, Seton Hall University School of Law; Leslie Kendrick, University of Virginia School of Law; and Genevieve Lakier, University of Chicago Law School. The second panel, “Free Speech and Incitement in the Online World,” was moderated by Professor William Araiza, author of casebooks and numerous articles on constitutional law and the First Amendment, and included Professor Jonathan Askin, Founder/Director of the Brooklyn Law Incubator & Policy Clinic and the Innovation Catalyst for the Center for Urban Business Entrepreneurship; Emerson Sykes, ACLU Speech, Privacy and Technology Project; and Rachel Vandlandingham, Southwestern Law School.

The third panel, “Free Speech, Incitement, and Terrorism Anxiety,” was moderated by Gora and included David Han, Pepperdine University School of Law; Leslie Gielow Jacobs, University of the Pacific McGeorge School of Law; and Christina Wells, University of Missouri School of Law. And the final panel, “Incitement in the 21st Century,” was moderated by Ronald K. L. Collins, formerly University of Washington School of Law and author of the First Amendment News blog; and included Louis Michael Seidman, Georgetown University Law Center; and Nadine Strossen, New York Law School.