Incitement to Unlawful Conduct

Author:Kent Greenawalt

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Incitement to unlawful conduct raises a central and difficult issue about the proper boundaries of freedom of expression and of the FIRST AMENDMENT. Many of the Supreme Court's most important FREEDOM OF SPEECH decisions have involved some form of incitement. Though the term incitement sometimes refers to emotionally charged appeals to immediate action, the word is most often used to cover any urging that others commit illegal acts.

The basic problem about incitement is fairly simple, involving a tension between a criminal law perspective and a free speech perspective. Any society seeks to minimize the number of crimes that are committed. Some people commit crimes because others urge them to do so. Although the person who actually commits a crime may usually seem more to blame than someone who encourages him, on other occasions the inciter, because of greater authority, intelligence, or firmness of purpose, may actually

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be more responsible for what happens than the person who is the instrument of his designs. In any event, because the person who successfully urges another to commit a crime bears some responsibility and because effective restrictions on incitement are likely to reduce the amount of crime to some degree, sound reasons exist for punishing those who incite.

Anglo-American criminal law, like the law of other traditions, has reflected this view. In 1628, EDWARD COKE wrote that "all those that incite ? any other" to commit a FELONY are guilty of a crime; and, at least by 1801, unsuccessful incitement was recognized as an offense in England. Modern American criminal law generally treats the successful inciter on a par with the person who performs the criminal act; the unsuccessful inciter is guilty of criminal solicitation, treated as a lesser crime than the one he has tried to incite.

From the free speech perspective, the problem of incitement takes on a different appearance. A basic premise of a liberal society is that people should be allowed to express their views, especially their political views. Some important political views support illegal actions against actual or possible governments. Indeed, one aspect of the political tradition of the United States is that revolutionary overthrow of existing political authority is sometimes justified. Other views deem certain illegal acts justified even when the government is acceptable. Were all encouragements of illegal activity suppressed, an important slice of political and social opinions would be silenced...

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