The First Amendment’s protection of free speech is a cornerstone of American democracy, but it is not absolute. One of the most debated boundaries is whether speech that incites illegal action is protected. This classic constitutional law hypothetical—“If someone’s speech incites illegal action, is it protected by the First Amendment?”—has shaped both national and Georgia law. Here’s what you need to know about the legal standards, key cases, and how Georgia applies these principles.
The First Amendment and Its Limits
The First Amendment states, “Congress shall make no law… abridging the freedom of speech…” This sweeping language restricts government action at all levels, not just Congress, thanks to the Fourteenth Amendment’s incorporation doctrine. However, the Supreme Court has long recognized that some categories of speech are not protected, including incitement to imminent lawless action, “fighting words,” true threats, and more.
The Brandenburg Test: The Modern Standard
The leading case on incitement is Brandenburg v. Ohio (1969). In this case, the Supreme Court set a high bar for when speech advocating illegal action can be punished. The Court held that speech is unprotected only if:
- It is directed to inciting or producing imminent lawless action, AND
- It is likely to incite or produce such action.
This two-part test, known as the Brandenburg test, means that mere advocacy of illegal conduct—no matter how offensive or unpopular—is protected unless it is intended and likely to cause immediate unlawful acts.
Example: If a speaker urges a crowd to “storm the courthouse right now,” and the crowd is on the verge of doing so, that speech is not protected. But if someone says, “We should resist these laws someday,” that is protected advocacy, not incitement.
“Fighting Words” and True Threats
Georgia law also recognizes the “fighting words” doctrine, another exception to free speech. “Fighting words” are those that, by their very utterance, are likely to provoke an immediate violent reaction from the average person. Georgia’s disorderly conduct statute, O.C.G.A. § 16-11-39, reflects this principle and was revised after the Supreme Court struck down a previous version for being too vague (Gooding v. Wilson, 405 U.S. 518 (1972)).
Similarly, “true threats”—statements meant to communicate a serious intent to commit unlawful violence—are not protected. The Supreme Court clarified in Virginia v. Black (2003) and Counterman v. Colorado (2023) that the speaker need not actually intend to carry out the threat, but must at least consciously disregard the risk that their words will be perceived as threatening.
How Georgia Applies These Principles
Georgia courts and law enforcement follow the federal standards for incitement, fighting words, and true threats. For example, if someone in Georgia gives a speech urging others to commit a crime immediately, and it’s likely to happen, that speech is not protected and can be prosecuted under state law.
Georgia’s “fighting words” law is narrowly tailored to avoid criminalizing merely offensive or annoying speech. The law requires that the words be likely to provoke a breach of the peace and that a direct confrontation is possible. Insults shouted from a passing car, for example, are not “fighting words” because there’s no real opportunity for immediate violence.
Advocacy vs. Incitement: The Importance of Intent and Imminence
The distinction between protected advocacy and unprotected incitement hinges on two factors: intent and imminence. The speaker must intend for their words to cause immediate illegal action, and the circumstances must make it likely that such action will occur right away.
- Protected: “We should protest these laws someday.”
- Unprotected: “Let’s break into the building right now!” (if the crowd is ready to act)
This high threshold protects robust debate and unpopular opinions, even when they advocate for change through illegal means, as long as they don’t cross the line into incitement.
Real-World Examples and Georgia Cases
- In Hess v. Indiana (1973), a protester’s statement, “We’ll take the street later,” was ruled protected because it did not advocate imminent lawless action.
- In Georgia, the Supreme Court’s decision in Gooding v. Wilson led to the revision of state law to ensure only speech likely to provoke immediate violence could be punished.
Private vs. Government Action
It’s important to note that the First Amendment restricts government action, not private parties. Private property owners, employers, and organizations in Georgia can set their own rules about speech on their premises. The First Amendment does not prevent a private university or business from disciplining someone for speech that would otherwise be protected from government censorship.
Conclusion: Free Speech, Responsibility, and the Law in Georgia
The First Amendment’s protection of speech is broad, but not unlimited. In Georgia, as elsewhere in the U.S., speech that is intended and likely to incite imminent illegal action, or that constitutes “fighting words” or true threats, is not protected. The law draws a careful line to ensure that robust debate and advocacy—even for unpopular or controversial causes—remain protected, while speech that poses a real and immediate danger can be regulated.
If you’re in Georgia and concerned about whether certain speech is protected, consider the context, the intent, and the likelihood of immediate illegal action. When in doubt, consult a legal professional familiar with both federal and Georgia law.
Disclaimer
The information provided on this blog is for general informational purposes only and is not intended to serve as legal advice. While I am a paralegal, I am not a licensed attorney, and the content shared here should not be construed as such.
No attorney-client relationship is formed through the use of this blog or by any communication with me. For specific legal advice tailored to your situation, please consult with a qualified attorney who is licensed to practice law in your jurisdiction.
I strive to ensure that the information presented is accurate and up-to-date; however, I make no representations or warranties regarding the completeness, accuracy, reliability, suitability, or availability of any information contained on this blog. Any reliance you place on such information is strictly at your own risk.
Thank you for visiting my blog, and please feel free to reach out with any questions or comments!