A Controversial Speech Abroad Provides a Reminder of our American Constitutional Free Speech Rights

A Refresher on the Laws of Criminal Incitement

At a recent London Pride event, Transgender felony parolee, Sarah Jane Baker, declared to cheering revelers, “I was gonna come here and be really fluffy and be really nice and say yeah be really lovely and queer and gay... Nah, if you see a TERF, punch them in the f****** face!”¹

For those who are not familiar with the term, “TERF” stands for “Trans Exclusionary Radical Feminist” (and they generally don’t get along with trans rights activists).

Thus, TERFs cheered when London Metropolitan Police subsequently arrested Sarah Jane Baker, who had been out on parole for convictions of kidnapping and murder, for “criminal incitement to violence”, posting the video all over the internet.²

Constitutional lawyer and proud American that I am, I found watching this video profoundly disturbing and offensive.

Not because I agree in any way with the comments that Baker made but because the video was a real time deprivation of an individual’s civil rights. At least what are constitutionally protected civil rights here in the United States.³

When I said so on Twitter, I received a number of angry, insulting, and downright nasty response tweets from random British Twitter TERFs. They seemed to assume that objecting to the arrest of Sarah Jane Baker for what she said meant agreement with what she said.

I had two reactions.

First, it gave me better perspective on the Revolutionary War, the War of 1812, and the other 19th century military skirmishes between the United States and the United Kingdom over disputed territory in North America.

Learning American history is always hard to reconcile with the modern world. The United Kingdom is arguably our nation’s greatest ally.

In 2023, “The British are coming! The British are coming!” is an expression that conjures up, among other things, positive thoughts of Adele, the Spice Girls, the Beatles, the Moody Blues, John Cleese, Benedict Cumberbatch, Robert Irvine, Winston Churchill, Bertrand Russell, Prestat chocolates, miniature toy soldiers, Harrod’s teddy bears, formal tea services, Turnbull and Asser clothing, Charles Tyrwhitt dress shirts, Corgis, and Cavalier King Charles Spaniels.

The phrase does not conjure up an image of an imperial force coming to crush purportedly fellow citizens in the name of defending sovereignty in the King. Or Admiral Cockburn coming to burn down the White House.

However, if you ever have the misfortune of encountering a clearly mentally-disturbed British TERF on social media, the War of 1812 starts to make a little more sense (“It must have been the ancestors of THESE British people who did that!”).

Second, and far more importantly, this might provide an educational opportunity because many Americans might erroneously believe that one could get arrested in the United States for making the same statements that Sarah Jane Baker did.

If you’re speaking at a Pride event in the United States and tell the cheering and celebrating crowd, “I think we should just punch all the TERFs in the god damn face!”, have you committed a crime?

No.

This might seem confusing. There are laws against criminal incitement to violence in the United States. However, those criminal incitement laws and prosecutions for violating them must still be consistent with the First Amendment.

In order for speech to legally constitute criminal incitement to violence in the United States, two key prongs must be met.

1. The speech must do more than advocate for legalizing a crime or even calling for criminal acts in the future; the speech must directly call for imminent lawless action.

2. The speech must be reasonably likely to incite imminent lawless violence.⁴

This test comes from a seminal United States Supreme Court case, Brandenburg v. Ohio, where Ku Klux Klan members were convicted for holding a rally, where displaying their firearms, they called for massive marches on major U.S. cities, used racial slurs, and called for the deportation of all Jews to Israel and all Blacks to Africa.⁵

That hateful and racist speech proved irrelevant to the Court, which held that speech embracing violence made to a group of people does not diminish the First Amendment rights of the speaker.⁶ In reversing the conviction for criminal incitement, Brandenburg overruled previous case law that had allowed the government more leeway to prosecute people for saying things they dislike.⁷

And Brandenburg remains the legal standard for criminal incitement today, protecting free speech, no matter how gross, misinformed, or stupid the speech is.

If a prosecutor cannot prove both of these prongs, the First Amendment prohibits a prosecution for criminal incitement.⁸

Brandenburg’s test is stringently applied, where even the increased likelihood of listeners committing criminal acts is insufficient to meet the prong and punish a person for the speech in question.⁹ For speech to be illegal criminal incitement, merely ugly words do not suffice, the speaker must have specific intent to incite others to commit a crime.¹⁰

Moreover, under Brandenburg, the criminal action advocated for must also be truly imminent, not simply something that is conceivable at a later time. Nor is it a free floating test where courts and juries can make up what they believe reasonably imminent crime is, as the United States Supreme Court, a few years after the decision in Brandenburg, further clarified in Hess v. Indiana.

In Hess, a man at an anti-Vietnam War rally was arrested for saying “we’ll take the fucking street later,” or “we'll take the fucking street again” after sheriff’s deputies had forcibly moved protesters intentionally blocking traffic off the streets and onto the sidewalks.¹¹ The United States Supreme Court reversed his conviction as a violation of the First Amendment.¹² As the Court held, the state could not punish speech simply because it suggested illegal violence at a future time.¹³

The Brandenburg test for criminal incitement also extends to civil liability. When Charles Evers, brother of slain civil rights leader Medgar Evers, helped lead and organize a boycott of white owned businesses in Claiborne County, Mississippi, he announced, “If we catch any of you going in any of them racist stores, we're gonna break your damn neck.”¹⁴

This statement, along with others that he and other boycott organizers, became the grounds of a lawsuit against the NAACP and others for damages resulting from violent criminal acts against black residents who did not abide by the boycott and the loss of business among white businesses.¹⁵

However, throwing out the judgments against him and others, the United States Supreme Court held that Charles Evers’s statements were protected under the First Amendment.¹⁶ While his statements were emotional appeals to violence, they did not meet the Brandenburg test for imminent lawless violence and Evers could not be faulted for the criminal actions of others he had no knowledge of and did not personally order or assist in.¹⁷

But can’t a direct appeal to violence such as “let’s punch TERFs in the face” be actionable in and of itself?

When an 18 year old black man at an anti-Vietnam War rally in Washington, DC, announced to a crowd: “They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L. B. J.” and “They are not going to make me kill my black brothers.”, he was convicted of the felony of knowingly and willfully threatening the life of the President (Lyndon Baines Johnson).¹⁸

Surely, he must have gone to jail because that type of direct threat to the President’s life cannot possibly be protected speech under the First Amendment. Right?

Guess again. The United States Supreme Court reversed his conviction without even holding oral arguments.¹⁹ The statement was clearly hyperbole and not actually a threat in any kind of context.²⁰

While saying “we should all punch TERFs in the face” is a stupid ass comment (and that’s being very charitable), it is not something that can be criminally prosecuted consistent with the First Amendment.²¹

Now, is what Sarah Jane Baker said offensive? Absolutely. Triggering for some, even? Probably.

However, the First Amendment doesn’t allow the government to punish a speaker simply because a listener is triggered.²² Nor can speech be restricted simply because a majority of the public strongly dislikes it.²³

In the case of Baker’s comments about TERFs, the comments were hyperbolic, made in the context of a Pride event where a speaker expressed her dislike of TERFs. There was no imminent crime about to take place. At worst, Baker suggested committing future crimes at a later time.

Additionally, there’s no reasonable likelihood that anyone in the crowd listening was about to start punching TERFs in the face. The statement is a random suggestion that people should commit a crime (at worse), not a statement of specific criminal intent. If someone in the crowd later physically assaulted a TERF, the speaker could not be punished for the crime because they would lack specific intent to help that listener commit the crime.²⁴

Thus, one could not be convicted in the United States for telling a crowd at a Pride Parade “I was gonna come here and be really fluffy and be really nice and say yeah be really lovely and queer and gay... Nah, if you see a TERF, punch them in the f****** face!”²⁵

In fact, given the longstanding First Amendment precedents, this would be a fairly easy case. If someone was arrested for saying such a thing, prosecutors would very quickly throw out the charges.²⁶ If anything, there might be legal liability for the arresting officers for clearly violating the First Amendment rights of the person arrested.²⁷

The First Amendment’s protections might seem horrifying to some. It’s easy to see why TERFs would celebrate the arrest of Baker. However, American TERFs (including both actual TERFs and those who are inaccurately labeled as TERFs simply for voicing opinions that are unpopular with some left-wing activists or asking questions related to certain policies) will hopefully arrive at a different conclusion. The First Amendment protects them as much as it would protect someone like Baker.

After all, a plurality of Millennials believe that “misgendering” a person should be a crime.²⁸ United States women’s soccer star Megan Rapinoe has argued that comedian Dave Chapelle’s transgender jokes “directly leads to violence, whether it’s verbal or otherwise, against trans people.”²⁹ California State Senator Scott Wiener (D-San Francisco) often labels any journalist or medical professional who questions medical gender transitions of minors as committing an act of “violence”.

Imagine that we didn’t have the First Amendment. Or that we had it but simply chose not to enforce it when it was inconvenient.

If a person can be arrested for saying “we should punch TERFs”, a person could easily be arrested for making an off-color joke or referring to someone by their biological sex. When student activists at California State University at San Francisco chased former NCAA swimming star Riley Gaines off a speaking stage and locked her in a closet, holding her hostage for several hours, they did so because they argue that her advocacy against transwomen competing in women’s sports is “violence”. If British law applied, these activists might have been making a citizen’s arrest.

That probably seems absurd. But keep in mind the refrain of some activists that “SILENCE IS VIOLENCE!” If the law could be used to convict a person of celebrating or encouraging “violence”, it would be up to courts to decide what “violence” is. That would open the door to convicting TERFs for voicing their opinions simply because jurors agreed with Megan Rapinoe or Scott Wiener on what constitutes “violence”.

Because of our strong First Amendment protections, we know that one can never go to jail for making these kinds of comments. It’s not even up for debate.

Under the First Amendment, crimes don’t exist simply because someone somewhere, with too much time on their hands, decides they’re “triggered” by another’s comments that they happen to disagree with and believes either they (1) can draw a theoretical line to violence or (2) decide the speech itself constitutes “violence”.

But imagine if our system of law worked that way. Popular will could limit one’s ability to speak their own truth. When the power of the government can be turned against you to silence you for voicing your own truth, you lose your own liberty. That’s what the First Amendment protects us against.

To quote Supreme Court Justice William O. Douglas, “Suppression of speech as an effective police measure is an old, old device, outlawed by our Constitution.”³⁰

Long may it remain that way.

1. https://www.gbnews.com/news/trans-activist-arrested-after-telling-rally-of-supporters-to-punch-feminists

2. https://www.dailymail.co.uk/news/article-12294651/Trans-activist-told-crowd-punch-TERFs-face-arrested-incitement-violence.html

3. The author of this article is an attorney licensed to practice in the State of California and the District of Columbia. This article and all of the works on this Substack page are statements of the opinions of the author, only, and do not constitute legal advice; they are not intended to be relied upon by any individual or entity in any transaction or other legal matter, past, pending, or future. A paid subscription to this Substack page supports the author's scholarship and provides access to research that the author has compiled, but does not establish an attorney-client relationship. The author does not accept unsolicited requests for legal advice or representation, and this Substack page is not intended as legal advertising. The opinions expressed on this Substack page reflect the personal views of the author only.