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Freedom of Speech and Political Violence Owen Fiss "Uninhibited, robust, and wide-open.'" Justice Brennan used this now famous phrase to describe the type of public debate to which every democratic society must aspire. The free speech guarantee of the First Amendment ofthe United States Constitution should be construed, he insisted, in such a way as to make certain that debate which possesses these qualities will be possible and, indeed, will flourish. Sometimes, however, debate may become too uninhibited, too robust, and too wide-open. Words may become stern and harsh; officials may be accused of horrendous crimes; the passions of the audience may become inflamed. Violence may occur. What then? How can we reconcile the constitutional commitment to the protection of robust public debate with the very understandable need of law enforcement officials to maintain order and prevent violence? All democracies must ponder this question, but Israel's need to do so is especially poignant and urgent. In November 1995 Prime Minister Yitzhak Rabin was assassinated by an Israeli citizen intending to derail peace negotiations then in process. This tragic event has had profound repercussions in all walks of life, not just in Israel but the world over, and among other things has disrupted settled understandings of the limits of free speech. The assassin apparently justified his action in terms of religious or political principles publicly and forcefully expounded by some Israelis in opposition to the peace negotiations. Unregulated public debate seems to have taken its toll. Governments and law enforcement officials have many different strategies for responding to risks of violence or, more specifically, to what has become known in the law as subversive advocacy. The criminal law is only one strategy, but it has played a crucial role in the formation of constitutional doctrine in the United States and perhaps elsewhere, and for that reason I wish to focus upon it. In doing so, I assume that a jurisdic70 Freedom ofSpeech and Political Violence 71 tion has on its books a statute that prohibits the advocacy ofviolence and that law enforcement officials arrest and prosecute some provocateur who has called for violence. The constitutional issue arises when the accused party defends himself on the ground that the statute cannot, consistent with the principle of free speech, be applied to him. In the well-known case of Brandenburg v. Ohio,2 the Supreme Court of the United States, faced with just such a situation, drew a distinction between two categories ofspeech that have come to be known as "the general advocacy ofviolence" and "incitement to violence" in order to demarcate the boundaries of state censorship. The Supreme Court held the state could constitutionally punish the advocacy of violence only when it amounted to an incitement to violence, but not when it was "mere advocacy ."3 To constitute incitement, the urging to violence must be focused; it must be reasonably likely to succeed; and it must be temporally proximate to the act ofviolence. The advocacy must be, in the Court's words, "likely to incite or produce" what was termed "imminent lawless action."4 Absent this threat, there would only be the general advocacy of violence or "mere advocacy," which the Court held to be constitutionally protected. A consensus has developed in the United States and abroad approving that branch of Brandenburg permitting the punishment of incitement. The protection the Court gave the general advocacy of violence, however, has provoked more controversy, and the Rabin assassination invites a reconsideration of that ruling. The religious and political teachings that appear to have played some role in the mind of Rabin's assassin could not be fairly considered an incitement, at least as the Brandenburg Court understood that term. Some opponents of the negotiations spoke of the Prime Minister as a traitor, and some characterized him as a "pursuer" under Jewish law, who might justifiably be killed; but none of these utterances seems to have had the temporal proximity or imminent likelihood of success required for incitement. These urgings more closely resemble general advocacy. Some who defend the rule of Brandenburg protecting general advocacy of violence start with a very grandiose conception of democracy. For them, citizens should be allowed to advance any idea whatsoever, including that it is right and proper to use violence to achieve political goals. Democracy is a system of self-governance, and free speech an essential precondition for effective exercise of the power to govern oneself. Citizens must have unlimited access to all ideas. Of course...

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