Scholarship@WashULaw

Document Type

Article

Language

English (en)

Publication Date

2025

Publication Title

Journal of Free Speech Law

Abstract

This Article explores the murky line between protected speech and assembly on the one hand, and harmful incitement on the other. On the occasion of the 100th anniversary of Oliver Wendell Holmes’s dissent in Gitlow v. New York, it explores Holmes’s famous dictum that “every idea is an incitement” as a conceptual starting point. By analyzing the relational and temporal dynamics between speaker and listener, the Article highlights how meaning and effect are often shaped by the listener’s agency and other circumstances beyond the control of the speaker. Two contemporary cases illustrate these dynamics. The first is the Fifth Circuit controversial decision in Mckesson v. Doe, which asserted that protest organizers might be civilly liable for the violent actions of others under a “negligent protest” theory. The second is President Donald Trump’s words on January 6, 2021, and their relationship to the ensuing violence at the Capitol. In both cases, the Article challenges the adequacy of foreseeability alone as a basis for liability, particularly given the First Amendment interests at stake. The Article proposes a potential middle ground: applying a recklessness standard to protest related liability. Drawing from the Model Penal Code and recent Supreme Court decisions like Counterman v. Colorado, this framework would require subjective awareness of a substantial and unjustifiable risk, offering a more constitutionally sound alternative to negligence theory.

Keywords

First Amendment, Negligent Protest, Protected Speech and Assembly, Incitement, Mckesson v. Doe, Liability Standard

Publication Citation

John D. Inazu, Incitement, Enthusiasm, and the Dangers of Negligent Protest, 6 J. Free Speech L. (forthcoming 2025)

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