Outline - Con Law Ii Volokh

Advocacy of Crime – Incitement and Solicitation Exceptions I. “Advocacy of the use of force or of law violation is constitutionally unprotected incitement when it is (Brandenburg) a. 1) "Directed to inciting or producing" i. Look at ALL circumstances carefully (i.e. DJ playing co-killer – wk 1) b. 2) "Imminent lawless action" ii. Prob means action w/i hours or at most several days iii. Excludes advocacy of illegal action "at some indefinite future time" (Hess) c. 3) "And is likely to incite or produce such action" iv. Consider size of audience – if large, increases likelihood that someone will react BUT might also increase value of the speech v. Consider statistical evidence of ppl’s reactions vi. Is there some other deterrent (i.e. punishment for murder) that cuts against likelihood that speech will incite unlawful behavior II. Solicitation is constitutionally unprotected speech when (Williams) d. Speech is “a proposal to engage in illegal activity" e. Esp when focused on "a particular piece" of contraband (i.e. child porn in Williams) f. As opposed to "the abstract advocacy of illegality" g. Generally, imminence isn't as big of a deal - can probably be absent h. But usually need to show some purpose and some likelihood that solicitation will have intended effect III. Exception? Dennis and Yates – commy advocacy cases not consistent w/ Brandenburg test, but not clear what rule they set forth i. Allowed restrictions on advocacy of concrete action (rather than just abstract doctrine) even when the action wasn’t imminent j. Most scholars think they’re not good law, but never overruled IV. Distinguish cases where speech itself is being punished from cases where speech is being used as evidence of D's crime (not protected in the latter situation)
False Statements I. Overview and