Civil incitement is an evolving theory, intended to ascribe liability to a publisher. Civil incitement charges that the contents of a publication proximately caused the plaintiff’s physical injury, thus holding publishers civilly liable for the physical consequences of their communications. However, the validity of civil incitement as an actionable tort clashes with the principles of freedom of speech and press embodied within the First Amendment. Incitement, as a successful cause of action, demands following the standards set out in Brandenburg v. Ohio. Prior attempts to hold publishers civilly liable for the physical consequences of their communications have rarely survived motions for summary judgment, and even less frequently been submitted to a jury. Courts have generally held either the plaintiffs failed to state a cause of action upon which recovery could be granted or the defendants’ First Amendment defense was dispositive. However, in Brandenburg v. Ohio, the Supreme Court announced a new standard for cases implicating infringement upon free speech. Under this new standard, courts must find advocacy “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Upon meeting this standard, the First Amendment no longer protects the contents of a publication, and publishers will be civilly liable for the physical consequences of their communications. Thus, urging a successful cause of action sounding in incitement demands conformity to the constitutional standard enunciated in Brandenburg v. Ohio. Accordingly, the elements necessary to overcome any constitutional objection to recovery for injury caused by civil incitement are: (1) advocacy; (2) imminent action; (3) lawless action; (4) intent; and (5) likelihood of occurrence.
St. Mary's University School of Law
Michael P. Kopech,
Shouting Incitement in the Courtroom: An Evolving Theory of Civil Liability Comment.,
St. Mary's L.J.
Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol19/iss1/5
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