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University of Cincinnati Law Review

Abstract

As people increasingly use social media to organize both protests and robberies, government will try to regulate these calls to action. With an eye to this intensifying dynamic, this Article reviews First Amendment jurisprudence on incitement and applies it to existing statutes on incitement to riot at a common law, state, and federal level. The article suggests that First Amendment jurisprudence has a particularly tortuous relationship with regulating speech directed to crowds. It examines current crowd psychology to suggest which crowd behavior, if any, should as a matter of policy be subject to regulation. It concludes that many existing incitement-to-riot statutes are both bad policy and unconstitutional under Brandenburg v. Ohio.[1] The article consequently suggests that courts should be careful in the application of these statutes, and states should be hesitant to build upon existing incitement-to-riot statutes to regulate new media.

[1]. 395 U.S. 444 (1969).

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