Terrorizing Advocacy and the First Amendment: Free Expression and the Fallacy of Mutual Exclusivity

Abstract

Recent concern about modern terrorists’ attempts to induce ideologically-driven violence has given rise to a First Amendment dilemma. Some conclude that to preserve our free speech tradition, unlawful advocacy must be protected absent the imminent danger of harm. Others argue that traditional First Amendment protection must be suspended in the specific context of terrorist speech to prevent potentially violent catastrophes. We seek to resolve this dilemma by recognizing a new hybrid category called “terrorizing advocacy.” This is a type of traditionally protected public unlawful advocacy that simultaneously exhibits the unprotected pathologies of true threats. When a speaker urges a willing listener to commit violence against an intended victim who is an intended recipient of the speaker’s advocacy, the speech constitutes a blend of protected persuasive and unprotected coercive speech. We propose a new multi-factor test designed to balance these competing elements in a manner that protects unlawful advocacy when appropriate but suppresses inherently coercive threats where they dominate the expression. In this manner we have recognized an inherent duality of two types of criminal speech when to date courts and scholars have implicitly assumed the mutual exclusivity of unlawful advocacy and true threats doctrine.