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Tuesday, December 02, 2014

Michael Brown and the return of Brandenburg

A colleague asks a question:

Did Louis Head, Michael Brown's stepfather, commit incitement within the meaning of Brandenburg? Law enforcement apparently is investigating possible charges. Immediately following the announcement of the grand jury decision, Head was captured on video (embedded-go to 2:30 mark) shouting "Burn this motherfucker down" and "Burn this bitch down" (as people around him tried to calm him down).

Brandenburg requires that incitement be "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." The Brandenburg paradigm is a torches-and-pitchforks mob outside a poorly guarded jail and the leader saying "let's get that guy in there." We definitely have a mob here (although hardly in a poorly guarded area, since there were police in riot gear across the barricade and the National Guard was in the area). But I do not see how the state could show intent. There also is Hess v. Indiana, in which the Court overturned a conviction where the defendant was not addressing any persons or group and he was no louder than anyone else in the group. Certainly Head was at the center of crowd and he can be seen asking for a microphone or bullhorn, as if trying to address the crowd above the noise. But he also just appears to be one of many people shouting into the sky in a show of anger, in his case, immediately after embracing his wife, who had just broken down.* He just happened to be caught on camera, which raises an interesting question--if his words reached millions watching TV but not the people who did the actual rioting, can he be said to have incited the crowd?

* Yes, I acknowledge that this perception may be influenced by my views of the case and the First Amendment and that mileage may vary.

I have been kicking around an idea that the legal change to come out of Ferguson may be all about the First Amendment--militarized police responding to public gatherings, negotiations on rules of public protest, citizen video, unconstitutional move-along policies. A good old-fashioned incitement/advocacy of unlawful conduct argument would top that off.

Posted by Howard Wasserman on December 2, 2014 at 06:04 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink


Howard, we're talking slightly past each other. I can see the Hess and Claiborne arguments that could be made here, but the de novo standard isn't the issue. My question for you is, why do you think it's obvious that Head wasn't trying to incite the crowd?

Sure, it's not clear to me what role his words - possibly audible only to a few - played in subsequent events, though this seems a common feature of incitement cases. But you're making a factual claim about the correct way to understand his conduct, which is somewhat different from your parallel claims about the narrow band of inciting speech that is constitutionally punishable.

Posted by: Adam | Dec 2, 2014 10:06:54 PM

Steven: Great point about Claiborne, which I think suggests even more that what Head said is protected. And Bose addresses Adam's point about this being for the jury--since the First Amendment is implicated, an appellate court will review any finding de novo.

Head's comments were caught on tape loud and clear. But it is less clear that the crowd there heard them or that he was addressing the crowd, both of which are essential under Hess.

I don't believe Elonis will change anything. The Court appeared to be wrestling with true threats as a new and unique category, but accepting previously established categories (fighting words and incitement) as separate.

Posted by: Howard Wasserman | Dec 2, 2014 9:46:09 PM

Add NAACP v. Claiborne Hardware to Hess, and you've got two examples that parallel Head's comments--emotional rhetoric, not an actual attempt to incite. Sure, the state "could" prove intent because you can never be sure what juries will do, but I think it would have a tough time doing so because of Hess and Claiborne. Especially on appeal under the Bose de novo standard of review.

But I have a question: I've always read Brandenburg to require intent to incite, but with Elonis v. United States, about which I've been blogging, I wonder if Brandenburg's mens rea standard might be vulnerable?

Posted by: Steven R. Morrison | Dec 2, 2014 9:22:46 PM


I don't understand your claim that the state couldn't possibly prove intent.

I am sure Head's lawyers will provide an entertaining stream of alternative interpretations for what "burn[ing] this bitch down" might mean, and depending on the outcome of this week's SCOTUS argument, perhaps we'll learn that he was merely sharing some of his favorite music lyrics. All kidding aside, if there are circumstances from which one can reasonably infer a speaker intended to incite rioting, there are few hypotheticals to match this one. Given that Head was speaking to an obviously agitated crowd, in a place where things had quite recently, and for the same reasons been burned down, and where things were in fact burned down shortly after his statement, I'm thinking this is one for the jury. Why do you disagree with that?


Posted by: Adam | Dec 2, 2014 7:34:51 PM

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