There were some questions yesterday about whether Jones yelled "fire" in a crowded theater. Not really. Emily Chertoff talked to Yale Professor Jack Balkin:
The relevant question is whether or not speech is an incitement to riot, or to produce any other imminent lawless action. Whether it incites violence is the central question -- and that means not just that the speech produces violence, but that the speaker intends it to.Generally speaking, the rule is you can't be held liable for speech that moves other people to violence unless your speech is intended to producing violence and is likely to almost immediately produce it. That's the point of the familiar example of shouting "fire" in a crowded theater -- you're trying to cause a ruckus. But you can also see why this is not the best example. Sometimes there actually is a fire.
Ultimately, as Balkin explains, it is very difficult to prove incitement, which requires proving that 1) the speech in question intended to cause an illegal violent act, and 2) that the speech did directly cause the illegal violent act at issue. In no way does what either Jones or "Bacile" did qualify as incitement.
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