Tuesday, April 16, 2019
Richard Ashby Wilson, University of Connecticut School of Law, is publishing Brandenburg in An Era of Populism: Risk Analysis in the First Amendment in the University of Pennsylvania Journal of Law & Public Affairs (2019). Here is the abstract.
We live in an era of populism, characterized by political polarization, speech that incites violence on social media, and an escalation in hate crimes. The regulatory framework established fifty years ago in Brandenburg is showing signs of severe strain. One of the central frailties of Brandenburg’s three-part test for incitement is the lack of guidance on how to evaluate whether a speech act is likely to incite an imminent offence. In the absence of clear direction on how to assess the possible causal effects of speech, judges often rely on outdated heuristics and misleading metaphors. This article is the first to draw on behavioral research to construct a systematic, evidence-based framework for analyzing the risk that inciting speech will result in imminent lawless action. The proposed matrix is then applied to the fact pattern in Sines v. Kessler, a civil suit arising from the events in Charlottesville in 2017.
Download the Article from SSRN at the link.