Can the Government Restrict Incitement Content on Social Media?
By Samuel Naramore
In November 2023, a District Court Judge in Colorado held that former President Trump had used his social media between 2020 and 2023 to incite lawless action.[1] With the 2024 election cycle looming, this judge’s ruling is incredibly timely. As social media’s attention turns towards the political discourse, the passion around contentious topics and groups will likely increase. It is critically important to understand what incitement to lawless action on social media is, to prevent future acts of political lawlessness like those on January 6, 2021.
The United States has a long tradition of protecting the right to freedom of speech[2], and fundamental to this tradition is having nearly uninhibited political speech.[3] How could the drafters of the Constitution not have foreseen writing the First Amendment in the late 1700s were the technological advances and the impact of these advances on speech? In contemporary times, when people want to express themselves and contribute to the public discourse, many turn to social media to express themselves.[4] Apps and websites like Instagram, Facebook, X (formerly known as Twitter), Youtube, and TikTok provide Americans instantaneous access to express themselves, communicate with people around the country, and absorb the speech from anyone else using these platforms.[5]
As technology and the channels of speech have advanced, questions of when traditionally protected political speech loses protection and what, if any, restrictions the government can apply to limit dangerous speech on social media, have advanced just as fast. One question, as the 2024 elections inch closer, is when the rhetoric surrounding contentious policies heats up, when does a user’s speech and advocacy on social media become an incitement to lawlessness, and what, if anything, can be done to restrict the speech of this kind?
The First Amendment of the Federal Constitution enumerates the right to freedom of speech from government coercion or censorship.[6] Because the First Amendment, at its core, protects speech from government control[7], when considering whether to restrict political speech on social media intended to incite lawlessness, it is vital to understand that content related to political speech is arguably the most protected genre of speech.[8] However, many often do not appreciate that not all speech is protected.[9] For instance, “true threats,” making a threat directed at someone and causing them to believe there injury or death is likely to occur,[10] and fighting words, using such inflammatory speech towards a group and knowing that it will almost certainly cause a response,[11] are both examples of speech that do not receive First Amendment protections.
In light of the carve-outs exempting certain forms of speech from First Amendment protections, how would social media users know if their political posts cross the threshold between protected speech and incitement? The cliché answer is “it depends.” Before the government can restrict speech as incitement, it must account for three considerations: first, what level of scrutiny would a court use to review government attempts to restrict online speech; second, what kind of public forum is social media; and third, what causes political speech to cross the threshold from protected to unprotected incitement?
For the government to pass a content-based speech restriction, the legislation must adhere to specific standards to avoid violating First Amendment rights.[12] Courts view any attempt by the government to restrict the content of speech as “presumptively unconstitutional.”[13]; but if the government can pass the two-pronged strict scrutiny test, the courts are more likely to uphold the restrictions.[14]
Strict scrutiny is a two-part test: first, the government must show that it is passing the law to achieve a compelling interest; second, it must show that the law is narrowly tailored, taking the least restrictive means possible to achieve its compelling interest.[15] For the government to pass any political speech restrictions on social media by labeling it as incitement, it must state a compelling government interest in curtailing this speech and draft any legislation that do not inadvertently inhibit other forms of expression.[16]
According to the Supreme Court, there are three types of government-controlled spaces related to speech restriction: traditional public forums, designated public forums, and nonpublic forums.[17] Traditional public forums include parks, streets, and sidewalks, generally held as the public square where speech and exchanging ideas receive the most protection.[18] In traditional public forums, the government has the lowest ability to restrict content, generally only having the capability to use content-neutral restrictions related to the time, place, and manner of the speech.[19] In the designated public forums, the government can apply the same time, place, and manner restrictions, but it has slightly more room to use content-based restrictions if the government can show it is not banning expression merely because of a disagreement with its content, and it satisfies strict scrutiny.[20] Finally, in nonpublic forums, the government essentially retains the forum for its purposes, and in these forums, it can utilize time, place, and manner restrictions; however, it can also use content-based restrictions by merely showing the restriction is reasonable in relation to the forum.[21]
Finally, what pushes normally protected speech into unprotected incitement? The line of demarcation lies in the Supreme Court’s “imminent lawless action” test from Brandenburg v. Ohio.[22] In this case, the Court held that the government is not permitted to forbid speech advocating for “the use of force or law violation,” except when this speech is directed to incite or produce “imminent lawless action and is likely to incite or produce such action.”[23] The test the Court established in Brandenburg focuses on imminence and likelihood elements.[24] What causes speech to lose First Amendment protections and transform into incitement subjected to regulation is when the ideas in the speech become overt acts.[25] To cross the line of protected speech, courts must find “evidence or rational inference from the import of the language, that his words were intended to produce, and likely to produce, imminent disorder….”[26]
When looking at political speech on social media, it’s unlikely the government could restrict political speech on social media advocating for the use of force or lawlessness by labeling it as incitement without running afoul of the First Amendment. In light of the different considerations surrounding political advocacy and whether it’s incitement, speech on social media falls under the traditional public forum protections from government censorship.[27] Any government restrictions on political speech on social media likely cannot survive strict scrutiny by failing to meet the “least restrictive requirement.”[28] Finally, restricting this speech would almost certainly fail the imminency and likelihood components of the Brandenburg imminent lawless action test.[29]
In 2017, the Supreme Court ruled that social media platforms are the “modern public square.”[30] As the modern public square, social media platforms receive the same protections that traditional public forums like public parks, sidewalks, and streets possess.[31] The Court held that social media platforms have become the “vast democratic forums of the Internet,” enabling Americans to come together and debate different political, religious, and societal topics, adding to the idea of public parks, sidewalks, and streets being places for the public to come together and exchange ideas.[32] With the judgment that social media is subject to the protections of a traditional forum, any content-based restriction must pass strict scrutiny.[33]
Without stretching one’s imagination, if the government sought to restrict speech on social media platforms, it could likely develop a compelling government interest and write legislation in “the least restrictive manner possible” to satisfy strict scrutiny. A predictable compelling government interest is public safety. The government’s desire to restrict speech designed to incite lawless action on social media serves the government’s strong interest in ensuring there is no violence, insurrection, or lawlessness resulting from speech.
More complex, and where any attempt to restrict speech likely fails, is drafting legislation in the manner mandated by strict scrutiny. There are probably many ways the government could draft legislation in the necessary “narrowly tailored” or “least restrictive” means to achieve its compelling interest. However, because the courts would approach any content-based restrictions as presumptively unconstitutional, any attempt at restricting speech protected by the First Amendment would almost immediately have its constitutionality questioned.[34] Distinguishing incitement from strong advocacy is subjective. Throwing in any political-content component to a government restriction on speech, any subsequent “chilling” on speech, would violate the core of the First Amendment.[35]
Finally, any incitement claim will face the Brandenburg imminent lawless action test. For a claim of incitement to pass judicial review, the government must satisfy the imminence and likelihood of lawless action portions of the test.[36] “Imminent” is described as an “immediate interference with the lawful and pressing purposes of the law that an immediate check is required.”[37]; whereas the likelihood requirement can be summarized as “whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent.”[38] These portions of the Brandenburg standard would be extremely difficult to prove outside of very few exceptions.
An illustrative exception of how the Brandenburg test could apply comes from November of 2023 and the Colorado District Court judge’s ruling that former president Trump used his social media between 2020 and 2023 to incite people to lawless action.[39] According to Judge Wallace, the former president sought to have people interfere with the lawful political process through his speech on his social media accounts.[40] Applying the Brandenburg test to the former President’s conduct, after receiving warnings his speech would likely cause imminent lawless action, and eventually ended up being attributed to actual lawless behavior on January 6th, this almost certainly satisfies the likelihood requirement.[41] Furthermore, the former president’s action also satisfy the imminence requirement; on January 6th, after working up his supporters following the November election, the former president directed his followers to the Capitol after his speech, and almost as soon as they could walk there, his supporters began committing lawless action.[42] This transformed his speech from advocacy into incitement.[43]
Government restrictions on political speech in America are antithetical to one of the country’s first principles, freedom of speech. In America, the Constitution protects the right to engage in political speech in public forums without government inhibitions. The right to advocate for the political policies they feel most passionate about, and they can do so without fear of the government censoring or restricting them.
[1] Anderson v. Griswold, 2023 COD 209, ¶ 287.
[2] Genevieve Lakier, The Non–First Amendment Law of Freedom of Speech, 134 Harv. L. Rev. 2299, 2301 (2021).
[3] See id. at 2318; see also Virginia v. Black, 538 U.S. 343, 366 (2003).
[4]See Deborah Fisher, Social Media, Middle Tenn. State Univ. (Oct. 24, 2023), https://firstamendment.mtsu.edu/article/social-media/.
[5] See Mike Vorhaus, People Increasingly Turn To Social Media For News, Forbes (June 24, 2020, at 9:51 PM), https://www.forbes.com/sites/mikevorhaus/2020/06/24/people-increasingly-turn-to-social-media-for-news/?sh=329cf1023bcc.
[6] Historical Background on the Free Speech Clause, Const. Annotated (last accessed Nov. 23, 2023), https://constitution.congress.gov/browse/essay/amdt1-7-1/ALDE_00013537/.
[7] See id.
[8] See Virginia, supra note 3, at 366.
[9] See id. at 344–45.
[10] See id. at 344 (“Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.”); see also Counterman v. Colorado, 600 U.S. 66, 74–76, 78 (2023) (holding that there is a subjective quality to true threats, requiring some proof that the speaker had some understanding of the threatening nature of their statements).
[11] See Virginia, supra note 3, at 359 (“We have consequently held that fighting words—’those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction’—are generally proscribable under the First Amendment.”).
[12] See David L. Hudson Jr., Content Based, Middle Tenn. State Univ. (Sept. 19, 2023), https://firstamendment.mtsu.edu/article/content-based/.
[13] Id.
[14] See id.
[15] David L. Hudson Jr., Strict Scrutiny, Middle Tenn. State Univ. (Sept. 19, 2023), https://firstamendment.mtsu.edu/article/strict-scrutiny/.
[16] See id.; see also Hudson Jr., supra note 12.
[17] Minnesota Voters All. v. Mansky, 138 S. Ct. 1876, 1885 (2018).
[18] Id.
[19] Id.
[20] Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 37–38, 46–48 (1983).
[21] See id. at 49; see also David L. Hudson Jr., Public Forum Doctrine, Middle Tenn. State Univ. (Sept. 19, 2023), https://firstamendment.mtsu.edu/article/public-forum-doctrine.
[22] See 395 U.S. 444, 447 (1969).
[23] See id.
[24] See id.
[25] See id. at 456–57 (“The example usually given by those who would punish speech is the case of one who falsely shouts fire in a crowded theatre. This is…a classic case where speech is brigaded with action.”).
[26] Hess v. Indiana, 414 U.S. 105, 109 (1973).
[27] See Hudson Jr., supra note 21.
[28] See Hudson Jr., supra note 15.
[29] See Brandenburg, supra note 22, at 47–48.
[30] Packingham v. North Carolina, 582 U.S. 98, 107 (2017) (“Social media allows users to gain access to
information and communicate…speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.”).
[31] See id. at 104–05; see also Hudson Jr., supra note 21.
[32] Packingham v North Carolina 104–106
[33] See Hudson Jr., supra note 21; see also Perry Educ. Ass’n, supra note 20, at 45.
[34] https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1130&context=ndlr_online
[35] See Leslie Kendrick, Speech, Intent, and the Chilling Effect, 54 Wm. & Mary L. Rev. 1633, 1655 (2013).
[36] See Brandenburg, supra note 22, at 45; see also Steven G. Gey, The Brandenburg Paradigm and Other First Amendments, 12 U. Penn J. Const. L. 971, 985, 1010 (2010).
[37] See Gey, supra note 36, at 985.
[38] See id. at 1010, 1019.
[39] See Anderson, supra note 1, at ¶ 75–127, 278.
[40] See id. at ¶ 103, 145, 244.
[41] See id; see also Gey, supra note 36, at 985, 1010.
[42] See Anderson, supra note 1, at ¶ 128–145.
[43] See Anderson, supra note 1, at ¶ 187–188, 285, 298 (noting that inaction can also suffice as incitement); see also Gey, supra note 36, at 985, 1010.
Image Source: https://time.com/5770755/threat-free-speech-online/