The First Amendment does not protect statements that incite a specific crime

There has been much discussion recently about the fact that the English government is prosecuting various people who are seen as supporters of violence or hatred in connection with the recent unrest there. Here is an extract from yesterday's New York Times Article:

They spread hate online. Then they were arrested.

[Subtitle:] Hundreds of people are facing trial for their role in the recent xenophobic riots in the UK, with several accused of inciting unrest through their online posts, raising questions about the limits of free speech.

A 53-year-old woman from north-west England was sentenced to 15 months in prison after posting on Facebook that a mosque should be blown up “with the adults inside”. A 45-year-old man was sentenced to 20 months in prison for inciting his online followers to set fire to a hotel housing refugees. A 55-year-old woman was questioned by police over a viral post that misidentified the suspect in a fatal knife attack during a children's dance class.

The article goes on to state that English law is less protective of freedom of speech than American law, and that is true. But I think it is also worth noting that Speech that calls for the commission of a specific crime against a specific target is probably not constitutionally protected even in America.. In particular, calling on people to blow up a particular mosque (which the woman mentioned in the article apparently did) or burn down a particular hotel would almost certainly fall under the First Amendment exception for “solicitation” (or perhaps under the “solicitation” aspect of the broader “external expression is an integral part of a crime” exception).

This exception is not as well known as other exceptions, such as genuine threats of illegal conduct, incitement to imminent and probable illegal conduct, defamation, child pornography, etc. But the Court has made it clear that it exists, most recently in US v. Hansen (2023):

Criminal incitement is the conscious promotion of an unlawful act. [T]The crime of incitement is completed as soon as the incitement occurs [and does not require that the solicited crime take place -EV] …. [S]Request … [does not] require[] provide physical assistance; … words may be enough. [It] require[s] the intention to carry out a specific unlawful act. [It is a] long-time crime theorist[y] The aim is to target those who support the crimes of a major perpetrator…

Statements intended to induce a specific illegal act have no social value and are therefore unprotected. We have applied this principle many times, including in advertising a specific contraband item, in recruiting for illegal employment, and in picketing with the “only illegal [and] immediate goal” of “induction[ing]” a target to violate the law.

And to cite another important precedent: US vs Williams (2008),

Many longstanding criminal prohibitions—such as conspiracy, incitement, and solicitation laws—criminalize speech (commercial or not) intended to induce or begin illegal activity. Offers to provide or solicitations to receive unlawful material, whether as part of a commercial exchange or not, also do not deserve First Amendment protection…

Of course, there remains an important difference between proposing to engage in illegal activities and advocating illegality in the abstract. The current law does not prohibit advocating child pornography, but only offers to provide it or requests to obtain it.

The abstract call for a violent revolution, for attacks on police officers or for the burning down of mosques is therefore constitutionally protected (unless it falls under the exception of “incitement” for the deliberate advocacy of imminent and probably illegal behavior). But the specific call for an attack on a specific person or property is an incitement and punishable if the speaker “intends to bring about a specific unlawful act”. For example, USA against whites (7th Cir. 2010) ruled that public speeches intended to incite listeners to attack a particular former juror would constitute criminal incitement to a violent crime:

According to the government's indictment, William White created and maintained the website Overthrow.com. Overthrow.com was affiliated with the American National Socialist Workers Party, an organization of white supremacists who “fight for white workers” and are “disgusted by the general garbage” that the white supremacist movement attracts…

On September 11, 2008, White published personal information about the jury chairman in [solicitation of murder trial of white supremacist leader Matthew Hale] (“Juror A”)….White’s September 11 entry was titled “The Juror Who Convicted Matt Hale.” It identified Juror A by name, showed a color photograph of Juror A, and stated:

Gay anti-racist [Juror A] was a juror who played a key role in the conviction of Matt Hale. [date], [he/she] lives in [address] with [his/her] gay black lover and [his/her] Cat [name]. [His/Her] Phone number is [phone number]Mobile [phone number]And [his/her] Office is [phone number]….

The indictment here…charges White with intending that another person injure Juror A and inciting another person to do so. It provides corroborating circumstances of White's intent. As one example of his intent, the government points to the re-publication of the information after Juror A's employer took action to remove his picture from public access. As another example, the government argues that White knew that the incited persons were prone to violence…

Although the First Amendment provides broad protections for free speech, there are limits. Speech that is an integral part of criminal conduct, such as fighting words, threats, and solicitations, is generally excluded from this protection… In the case of criminal solicitation, the speech—the invitation to another person to commit a crime—is the criminal act. Solicitation is an incomplete crime; the crime is completed when the words are uttered with the requisite intent and no further action is required by the solicitor or the solicitee. Nor is any specific person-to-person solicitation required…

Thus, whether the First Amendment protects White's right to publish personal information about Juror A depends first on his intent in publishing that information. If White's intent in publishing Juror A's personal information was to encourage one of his readers to harm Juror A, then the crime of solicitation would be complete. No action need follow, and no harm need have been done to Juror A. On the other hand, if White's intent was to express a political viewpoint regarding sexual orientation or to provide opportunities for other people to express such views to Juror A, then he would not be guilty of solicitation because he did not have the requisite intent for the crime.

Another example can be found at USA v Rahman (2d Cir. 1999), which affirmed the conviction of a jihadist religious leader for incitement, in part because it went beyond “the mere expression of ideas” and amounted to “incitement to attack U.S. military bases and to assassinate Egyptian President Hosni Mubarak … during his visit to the United States.”

If the statement was intended merely as an exaggeration or an attempt to let off steam, then it certainly could not constitute criminal solicitation. Recall again that an intention (in the sense of a conscious plan) must be shown to induce criminal conduct by soliciting people to do so. However, if such an intention can be shown, then in America, as in England, solicitation to commit a crime would be a criminal offence – although in America (but perhaps not in England) abstract advocacy of a crime without naming a specific aim would generally not be a criminal offence.