Con law- Hostile Audience v. Incitement of illegal activity

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BCLS
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Con law- Hostile Audience v. Incitement of illegal activity

Postby BCLS » Mon Apr 01, 2013 7:03 pm

Can you guys help me with this-- what exactly is the difference between these two? They seem exactly the same to me but my con law book separates them.

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5ky
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Re: Con law- Hostile Audience v. Incitement of illegal activity

Postby 5ky » Mon Apr 01, 2013 10:04 pm

I think the easiest way to think about it is to split it between a focus on the crowd and a focus on the speaker.

Hostile crowd is basically just focused on the crowd response to the speaker. For incitement of illegal activity, it's more focused on the speaker -- what he is saying, inciting people to act illegally, etc. The likelihood of success is of course a factor, but the main focus is on what the defendant actually said.

For hostile crowds, the speech itself is usually fine it itself, there's nothing illegal about it except the crowd reacts to it, and whether the police feel they can contain the crowd or not. It doesn't really matter what the person is saying (there was a hostile crowd case overturning a conviction for peaceful civil rights protestors who sparked a riot), just how the crowd reacts. That civil rights case was overturned not because of anything to do with the speech, but because the police presence was enough that arresting the speakers was not necessary (although in situations where the speaker is completely free of blame, that might be a finger on the scale for them).

BCLS
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Re: Con law- Hostile Audience v. Incitement of illegal activity

Postby BCLS » Tue Apr 02, 2013 9:39 am

5ky wrote:I think the easiest way to think about it is to split it between a focus on the crowd and a focus on the speaker.

Hostile crowd is basically just focused on the crowd response to the speaker. For incitement of illegal activity, it's more focused on the speaker -- what he is saying, inciting people to act illegally, etc. The likelihood of success is of course a factor, but the main focus is on what the defendant actually said.

For hostile crowds, the speech itself is usually fine it itself, there's nothing illegal about it except the crowd reacts to it, and whether the police feel they can contain the crowd or not. It doesn't really matter what the person is saying (there was a hostile crowd case overturning a conviction for peaceful civil rights protestors who sparked a riot), just how the crowd reacts. That civil rights case was overturned not because of anything to do with the speech, but because the police presence was enough that arresting the speakers was not necessary (although in situations where the speaker is completely free of blame, that might be a finger on the scale for them).

Thank you!

MinEMorris
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Re: Con law- Hostile Audience v. Incitement of illegal activity

Postby MinEMorris » Wed Apr 03, 2013 4:10 am

5ky’s description was totally right, but I thought I’d elaborate since I also found the distinction a little frustrating when I took Conlaw.

The hostile audience doctrine deals with the power of state officials to regulate speech—historically, by allowing an officer to give a cease and desist order and then arrest for violating an officer’s lawful order if the speaker doesn’t comply—in situations where the crowd is getting riled up because they don’t like the speaker or what she’s saying. As you can imagine, this can seem really unfair from the speaker's perspective. Imagine that you’re in a public square peacefully preaching your political views and then the crowd gets rowdy because it disagrees with you, and you are the one that gets arrested. Something doesn’t feel right about enabling the crowd to lower the protection for your speech through its own behavior. (This relationship between the crowd’s reaction and regulation of the speech is why the hostile audience doctrine is sometimes called the “heckler’s veto.”) At the same time, it’s easy to come up with a hypothetical where the ability to force the speaker to stop speaking makes a lot of sense. If it’s an angry audience of 100 people, you seriously think violence is going to erupt, and you’re the only officer in the area, forcing the speaker to shut up makes good sense. In any case, regardless of how we might otherwise balance these considerations, the doctrine exists: some speech that causes a potentially dangerous reaction from a third party, regardless of its content, is unprotected speech.

The core standard for the hostile audience doctrine has always been the clear and present danger test. Any time you have a speaker and a crowd reacting in a way that creates a clear and present danger of disorder, your hostile audience doctrine senses should start tingling. Around the edges of that core, however, things get less clear. The classic hostile audience case was Feiner v. New York, and in Feiner the majority said just having that clear and present danger was enough for the officer to be able to give the cease and desist order. In later cases (especially during the civil rights era), however, courts explicitly refused to apply Feiner but never explained why, and never overruled or qualified Feiner. The obvious reason would seem to be that Feiner is too harsh and leads to things like police having discretion to arrest peaceful protestors just because they’re causing observers to get riled up, but again, we have no precedent spelling this out or clearly changing the Feiner rule. Some commentators have suggested that the most promising and likely route for the future is to follow Feiner’s dissent, which said that police only have discretion to give the cease and desist order only if they first try to control the crowd but are unable. This perspective is also supported by at least one case, Edwards (I don’t remember the other party’s name), where the court said that the situation was very different from Feiner and concentrated on the fact that in Edwards enough officers were present to control the crowd if necessary. In the end, Feiner is your precedent, but in light of Edwards and the fact that courts have been hesitant to apply the Feiner standard outright, it seems possible that the Feiner standard will be qualified at some point in the future to match up more with something like the Feiner dissent.

Incitement is unprotected speech defined by the standard set out in Brandenburg: advocacy that (1) is directed to inciting or producing imminent lawless action, and (2) is likely to incite or produce such action. Incitement is more complicated and developed than the hostile audience doctrine, so I won’t go into it further for fear that I’m already too deep in rambling.

Ultimately I would sum up the main differences between the hostile audience doctrine and incitement as follows:
1. Like 5ky said, one is half-focused on the speaker and one is entirely focused on the crowd. To show incitement you have to show some level of speaker intention (“direction”) to produce imminent lawless action, but for the hostile audience doctrine to apply, all you have to do is show that the crowd got rowdy.
2. Incitement requires examination of the content of what the speaker was saying (i.e. whether it was something directed toward producing and likely to produce imminent lawless action), whereas no examination of speech content is necessary in the hostile audience context.
3. Incitement is its own category of unprotected speech, whereas, if I recall correctly, the hostile audience doctrine is understood to be a subcategory of fighting words.

Remember that on an exam you’ll probably find yourself arguing that a single speech act could be seen as potentially fitting in multiple categories of unprotected or lesser protected speech. For example, imagine the following hypo:

A woman goes on a military base and starts yelling out for the soldiers to help her overthrow the government. The woman's speech makes the soldiers angry, and some soldiers even start throwing light objects at her. An officer arrives and order her to cease and desist, but she continues. The situation with the crowd continues to escalate and the woman is eventually arrested.

In such a hypo, I would definitely bring up both tests. You're likely going to fail on the second prong of incitement, but you’d still be a fool to not mention it. The case for the hostile audience doctrine applying is probably a slam dunk. I personally found myself making arguments for 2-5 different categories of speech applying to most speech acts in the hypos on my exam.

Anyway, I’ve strayed way off topic here. Hope that somehow helps. Obviously, everything I've said is based off of my own memory and a quick peek at my old outline, so take it with a grain of salt.

BCLS
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Re: Con law- Hostile Audience v. Incitement of illegal activity

Postby BCLS » Wed Apr 03, 2013 11:40 am

Extremely helpful. I should just copy that into my notes haha. Thanks!!




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