How about punishing people for speech that spurs others to break the law? Courts have concluded there’s room under the First Amendment for that—under some very specific circumstances. “The standard for criminal punishment of incitement is quite high,” says Mark Tushnet, a law professor at Harvard. In a 1969 decision rejecting the Ohio conviction of a Ku Klux Klan leader, the Supreme Court said the government could only forbid advocating that people break the law “where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
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Under that precedent, “people can be punished for advocating illegal activity only if they intended that illegal activity ensue, only if they used explicit words of incitement, and, most importantly, only if they intended to incite ‘imminent’ illegal activity under circumstances in which such illegal activity was likely,” says Frederick Schauer, a law professor at the University of Virginia.
That last one could pose the biggest constitutional obstacle for prosecutors out to punish people for instigating protests. Under prevailing law, says Schauer, “imminence” is “a very strict standard approaching standing in front of an angry mob and encouraging them to immediate illegal action.” It’s particularly difficult, says CUNY’s Robson, to prove someone guilty of incitement based on Facebook posts or other written statements, which are less likely to have a provable immediate effect. Another obstacle for prosecutors: Some cases have also suggested that for incitement to be illegal, it has to be incitement to “pretty serious” crimes, notes Schauer, though those precedents are less clear.