Incite Me, Daddy: How to Plan a Revolution Without Catching a Felony

Cartoon of two young adults holding coffee cups and wearing backpacks, standing in front of the U.S. Capitol. One says in a speech bubble: “We’re gonna overthrow the government. But not now. Today we’re doing brunch.” The mood is humorous and satirical, contrasting revolutionary language with casual millennial apathy.

⚠️ Excerpt from later in Part 1 of my book. It’s like skipping to the sex scene in a legal romance novel. You’re welcome.

The Brandenburg Test

Clarence Brandenburg was the leader of an Ohio chapter of the Ku Klux Klan. This human diaper rash invited reporters and cameramen to attend a Klan rally, where he and others burned crosses and carried firearms while saying stuff like:

We’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken. We are marching on Congress July the Fourth, four hundred thousand strong. From there we are dividing into two groups, one group to march on St. Augustine, Florida, the other group to march into Mississippi.

As well as this selection of statements captured by the press (warning: racist rhetoric):

“This is what we are going to do to the niggers.”

“A dirty nigger.”

“Send the Jews back to Israel.”

“Let’s give them back to the dark garden.”

“Bury the niggers.”

“We intend to do our part.”

“Give us our state rights.”

“Freedom for the whites.”

“Nigger will have to fight for every inch he gets from now on.”

Brandenburg v. Ohio (1969). You’d think a case this radioactive would come with hazmat suits and a warning label, but no. Instead, SCOTUS dropped a per curiam opinion—Latin for “by the court”—meaning a short opinion attributed to no specific author, usually reserved for dry legal mop-up duty, not fundamental questions of national speech standards.

The ruling? Let those honkies talk.

Black-and-white newspaper clipping from the Cincinnati Enquirer, dated September 20, 1964, showing Clarence Brandenburg wearing a white Klan robe and pointy hood. Headline reads “Klan Identity ‘Rigged’ Says Brandenburg.” Article covers Brandenburg’s arrest after a KKK rally, during which he denied being a Klansman, despite photographic evidence to the contrary.
Newspaper clipping from the September 20, 1964 edition of the Cincinnati Enquirer, depicting Clarence Brandenburg. Used here for commentary and educational purposes under the fair use doctrine. Copyright Gannett Co., Inc.

That’s right. This is one of those WTF moments in the history of the American judiciary. SCOTUS basically said, “Yeah, these Dollar Store militiamen who are making not-so-subtle threats against blacks and Jews and all three branches of the U.S. government? Well, it’s not like anyone is gonna kill anyone that very second. So they’re good. Let them talk.”

Though SCOTUS never used the term, this later became known as the “Brandenburg test,” which states:

… the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

Bullshit Legal Translator (BLT): You can say scary things that suggest you might hurt people or attack the government (even while you wield guns), as long as those things are not going to happen immediately.

Don’t get me wrong. I’m all for free speech. And I’ll gladly join you in yelling racial epithets against big bad white people just for the hell of it. But the fact that the Brandenburg opinion turned free speech jurisprudence on its back—in a goddamn per curiam opinion short enough to be scribbled on a napkin, no less—makes me wonder if the Court just shot its constitutional load in a moment of doctrinal euphoria, then ghosted.

So what can you say post-Brandenburg? Oh, we’re gonna have a lot of fun with this one.

“Hey, everyone, it’s White Wednesday. I’m wondering if we should serve white people Wonderbread before whipping them under a tree.”

See? That’s probably protected speech under the Brandenburg test. To be sure, it’s racist as hell and decidedly violent, but I said I was “wondering” if we should whip white people. I’m not inciting imminent lawless action.

Or consider this one:

“Hey guys, let’s overthrow the government. But not today. Today we’re doing brunch.”

That’s definitely legally protected. And I’ll be silently cheering you on—from a legally safe distance, naturally.

And one last one:

“Let’s discuss what economic impact you would have on the stock market if you should unload a grenade launcher into the Oval Office before offering your own load of political fappy juice.”

Before anyone asks, that’s not a plan, it’s a performance-art economics metaphor. I’m not your Guy Fawkes, I’m your Guy Fucks-With-The-Law.

And though this one doesn’t come with the disclaimer that the event is happening at an unspecified time, given its abstract and hyperbolic nature, if that’s not legally protected speech under Brandenburg, I don’t know what is. Sure, Agent Dickface will be all up in your shit, but at least you got your constitutional wank-off!

And that’s ‘murica for ya, you fappy rabble-rouser!

Review, You Legal Dick

Print this out and tape it to your fridge so you can disappoint your parents faster.

Image Use Note: This historical newspaper clipping is used for non-commercial commentary on a matter of public concern and legal history, and falls under the fair use doctrine of U.S. copyright law. If you are the copyright holder and object to its use, please contact me for prompt removal.

Comment, Peasant.