The First Amendment and soliciting the murder of identified American soldiers

|The Volokh Conspiracy |

Here at The Post, Adam Goldman reports:

An Ohio man was arrested and charged with trying to solicit the murder of members of the U.S. military in their homes and communities in a series of posts on social media, the FBI announced Thursday.

The FBI said Terrence J. McNeil, 25, of Akron, repeatedly professed his support for the Islamic State and in September distributed a file on Tumblr that contained the photographs and names and addresses of dozens of U.S. military personnel.

[Read the criminal complaint]

"Now we have made it easy for you by giving you addresses," text in the file said. "All you need to do is take the final step, so what are you waiting for? Kill them in their own lands, behead them in their own homes, stab them to death as they walk their streets thinking that they are safe."

And indeed such speech is constitutionally unprotected, because of the little-known—but broadly accepted—"solicitation" exception.

General advocacy of criminal conduct (e.g., "Everyone should revolt against the government" or "Marijuana is good, everyone should try it") is constitutionally protected unless it's intended to and likely to cause imminent criminal conduct—and "imminent" here means in a few hours or at most days, as opposed to at some unspecified time in the future. That's the "incitement" exception, as defined by Brandenburg v. Ohio (1969) and elaborated on in Hess v. Indiana (1973).

But solicitation of a crime against a specific person may indeed be punished even if the crime is to take place at some unknown time in the future. The same is true of solicitation of a crime involving a particular piece of contraband, or likely criminal destruction of a particular place. That's the so-called "solicitation" exception, most clearly set forth in United States v. Williams (2008), but acknowledged long before then as well. "You should kill Joe Schmoe, from our enemy gang," said by one gangster to another, is unprotected speech. Likewise if the reason for the killing is jihad or anything else. Nor does it matter that McNeil passed along a file created by others, so long as he intended to solicit the murder of some of the soldiers whose names are included in the file (something the government would have to prove at trial).

Now the precise line between constitutionally unprotected solicitation of a specific crime and constitutionally protected advocacy of a kind of crime in general is not clear. Indeed, much of the history of incitement doctrine has been an attempt to draw this line. (See Part I.A of this article.) The line started out speech-restrictive in Fox v. Washington (1915) and Schenck, Debs, and Frohwerk in 1919, and then eventually became much more speech-protective in later cases, culminating in Brandenburg and Hess. (NAACP v. Claiborne Hardware (1982) also made clear that simply publishing the names of people—there, blacks who refused to go along with a black boycott of white-owned businesses—doesn't lose protection even when the people might foreseeably be targeted for violence by third parties, at least so long as the speaker doesn't intend to cause such violence.)

Still, some things are clear under the doctrine. And one thing is that specifically calling on people to kill a particular person is not protected by the First Amendment.