On Madonna's First Amendment Rights

Professor Ruthann Robson, City University of New York (CUNY) School of Law

Former Congressperson and presidential candidate Newt Gingrich has reportedly stated that the famous celebrity Madonna "ought to be arrested" for her speech at the Women's March in Washington D.C. including a reference to thinking about violence. 

Here's the video:

 

 

Madonna's statements are a far cry from satisfying the classic formulation in Brandenburg v. Ohio (1969) requiring that to be constitutional under the First Amendment, the criminalizing advocacy of violence can only occur if the advocacy is directed to inciting or producing imminent lawless action, and also is likely to incite or produce such lawless action.  The less well known case of  Hess v. Indiana (1973), is also pertinent because the Court found that the statements during a protest about 'taking the street' was not imminent and was directed at some indefinite future time. 

Here, Madonna stated that she "had thought" about the violent act of "blowing up the White House," and then continued, "but I know, that this won't change anything."  It's even difficult to meet the threshold of "advocacy" in this case, given that she isn't advocating or suggesting any action.  Moreover, even if there were some advocacy, it wasn't directed at inciting others to act.  And even if there was incitement, there was no likelihood that the crowd would act lawlessly.

The crowd did respond, however, when Madonna asked them to sing (and dance) along to one of Madonna's signature songs, "Express Yourself."

 

For ConLawProfs thinking of class illustration, this might be useful.  However, although Bradenburg-type questions can be popular (if also somewhat problematical) on exams, this seems far too easy.