I figured the difference is that the KKK rally was "just" a rally with no other immediate actions associated to it, while in this case, there is a pattern of callout videos or tweets that immediately inspire someone to call in a threat.
I get the impression your own choice of phrase shows you believe this isn't direct incitement.
(What more is left to say? Incitement is a thing where substantial culpability falls on the speaker telling the hearer to do something. If it's the hearer's own idea, their inspiration, to break laws, the speaker is not culpable for that).
I wasn't trying to be cute or anything -- I wasn't sure whether incitement legally has to be a direct suggestion like "You should call in a bomb threat against this library", or whether something like "This library has groomer books and someone should do something" would count if the person saying it can reasonably expect it would lead to a bomb threat based on past behavior, and says it anyway.
I do still want to find out whether there is a separate legal concept for that kind of indirect encouragement or negligence (depending on the intent of saying it anyway).
- "I do still want to find out whether there is a separate legal concept for that kind of indirect encouragement or negligence (depending on the intent of saying it anyway)."
That's the main relevance of Brandenburg: that ruling decided that things that fall short of its test are constitutionally protected free speech. It holds [0] "speech advocating illegal conduct is protected under the First Amendment unless the speech is likely to incite “imminent lawless action.”". That's the answer to your "indirect encouragement or negligence" question: if it encourages violence, and if it falls short of Brandenburg's test, then it is lawful. Encouragement or advocacy of violence is generally lawful.
All absolutely correct, but the other poster has a point. It kinds depends on how one reads 'likely'. A rudimentary analysis from year suggested that that the probability of harassment (not all of which would be illegal) following tweets about specific institutions is in the 20-25% range: https://rpubs.com/TaskForceButler/984347
The probability of actual criminal threats is much lower, perhaps 3-5%. My understanding that LibsofTiktok has a little over 1m followers, but plenty of e-celebs have comparable followings without being associated to such problematic behavior.
Well, I understand it's "directed to... and likely to...", and that first test is necessary. Rhetoric that isn't directed towards causing lawlessness, but has a tendency to do so anyway, is protected.
If there's a history of such speech inciting imminent lawless action, then can't we say that such speech incites imminent lawless action?
So if you have a forum, where certain kinds of statements on that forum usually/often cause very quick lawless action, can't you say that such statements on that forum are not constitutionally protected free speech?
Or is that not a valid application of Brandenburg?
