With more and more stories about people getting investigated, red flagged, or prosecuted for making, sharing, or generally partaking in boogaloo meme counter-culture, it seems appropriate to review some of the current legal framework surrounding freedom of speech and potentially unlawful speech.
You’re fine as long as what you say doesn’t call for an imminent lawless action which is likely to occur, and you’re also good if you’re referring to a crime that will occur at “some indefinite future time”. Read the full explanation below.
Before you read this, keep in mind a few things:
- I’m not an attorney, I’m just a guy running a blog
- Your state or jurisdiction’s standards may be more stringent than what’s discussed here
- Law enforcement doesn’t even really have to follow the rule of law anyway
- Red flag laws are generally not predicated on criminal charges and so police can still hassle you and steal your shit even if they aren’t charging you with a crime
Brandenburg v. Ohio
What magically turns free speech into illegal speech? In 1969 the US Supreme Court issued the most recent and still current legal standard in Brandenburg v. Ohio. SCOTUS ruled that
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.SCOTUS, Brandenburg v. Ohio
Imminent Lawless Action
And out of this opinion, the “imminent lawless action” test was born. There are two main requirements for speech to break the law. Speech or advocacy that is:
- “directed to inciting or producing imminent lawless action” and
- “likely to incite or produce such action”
For example — saying something like “let’s all band together and start an anarchist manufacturing facility to produce 3D printed armored personnel carriers” is probably okay since it’s not likely to actually occur.
Imminent Lawless Action Examples
Hess v. Indiana
Gregory Hess was an anti-war protestor who was arrested and convicted for disorderly conduct after telling a cop “We’ll take the fucking street later” or “We’ll take the fucking street again” at an Indiana University Bloomington protest against the Vietnam War. The case made it up to SCOTUS and ended up going in Hess’s favor.
In Hess v. Indiana (1973), the SCOTUS ruled that “advocacy of illegal action at some indefinite future time … is not sufficient to permit the State to punish Hess’ speech.”
Basically, if there’s not a reasonably defined time for an illegal action to take place, you’re good.
So, a meme that says “lol we should blow up the government” might be okay, but a meme that says “lol we should blow up the government on Tuesday at 10:45AM on the south lawn” is almost certainly a violation. For the feds reading this, please don’t kill my dog over that last example.
NAACP v. Claiborne Hardware Co
SCOTUS again applied the Imminent Lawless Action test in 1982 with NAACP v. Claiborne Hardware Co. The court’s opinion is below, from Cornell Law
In NAACP v. Claiborne Hardware Co.(1982), Charles Evers threatened violence against those who refused to boycott white businesses. The Supreme Court applied Brandenburg and found that the speech was protected: “Strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases. An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech.”https://www.law.cornell.edu/wex/brandenburg_test
There’s a pretty strong framework in the USA to protect free speech. As long as you aren’t making credibly violent threats that are likely to happen at a specific time, you’re ultimately going to be protected by SCOTUS precedent.
However, you are NOT protected against “red flag” laws or overzealous state or local police in terms of harassment or civil rights violations. We literally exist in a police state where all communications are monitored and scrutinized, so operate at your own risk.
It’s entirely possible that you’ll be assaulted in a no-knock raid at 2AM and will face a years-long court battle to clear your name if your memes are a little bit too spicy. But then again, free men don’t ask permission.
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