Schweber and Anderson on Beyond Brandenburg: First Amendment Incitement Standards and the Challenge of Internet Speech

Howard Schweber, University of Wisconsin, Madison, and Rebecca J. Anderson are publishing Beyond Brandenburg: First Amendment Incitement Standards and the Challenge of Internet Speech in Fight Like Hell: Free Speech and Incitement in the Twenty-First Century (Eric Kasper and JoAnne Sweeny, eds., SUNY Press 2024). Here is the abstract.

This paper argues that the existing standards for incitement that derive from Brandenburg v Ohio are inadequate in dealing with incitement in cyberspace. The idea that a new medium of communication calls for new developments in First Amendment doctrine is not new. For example, the rise of broadcast media (in the form of radio) led the Supreme Court to develop new rules about the regulation of content that was “indecent” but not “obscene,” meaning that it was inappropriate for children but protected against regulation with respect to adults. Because the radio was an “intrusive” medium the Court ruled that the FCC could ban indecent materials during daylight hours. FCC v. Pacifica (1978).ix Thus far, however, the Court has not yet dealt with the peculiar characteristics of the Internet and the adjustments to traditional doctrines that are called for as a result. In this chapter we describe first the requirements of the Brandenburg test in terms of an “ideal Brandenburg scenario” defined in relations of space, time, speaker-listener interaction. We then show why this model is ill-suited to deal with inciting speech on the internet by drawing on the model of “stochastic” incitement. Finally, we offer suggestions for modifications to the Brandenburg standard that would allow for better regulation of potentially inciting speech occurring on the internet, including specific suggestions for modifications to the immunity provisions of section 230 of the Communications Decency Act.

Download the essay from SSRN at the link.