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I. INTRODUCTION
Since the early 1900s, the Supreme Court has grappled with how to distinguish protected speech from speech that incites others to lawless action. The Court set forth the current standard for determining whether speech falls into the latter category in the 1969 case of Brandenburg v. Ohio.1 There, the Court held that advocacy of violence is protected unless it "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."2
The Brandenburg test is the product of a rich history of judicial debate.3 Unfortunately, the test is still unclear in some respects. For example, it is not clear how imminent the resulting unlawful conduct must be to satisfy Brandenburg. The Court's subsequent opinion in Hess v. Indiana,4 for example, suggested that imminent may mean within a matter of moments or hours, though it did not expressly provide any specific time frame.5 This lack of guidance has led to confusion among lower courts. For example, some courts require immediacy, while at least one court has suggested that imminent encompasses conduct as far out as five weeks in the future.6 Many scholars have already made significant headway in resolving this issue, suggesting that the word imminent be defined as a matter of days.7 Much has been said on this issue already, and this Comment adopts the more relaxed definition of imminence without further explanation.8
Another aspect of the Brandenburg test that remains unclear, and the one this Comment endeavors to clarify, is the requirement that the speech be "directed to" inciting imminent lawless action. This Comment contends that speech act theory, a linguistic philosophy that was first made famous in J.L. Austin's book How to Do Things with Words, can help clarify what it means to direct speech to inciting crime.
Part II of this Comment discusses three Federal Court of Appeals cases where the courts had to determine whether particular online postings were directed to inciting imminent lawless action. In each case, the courts decided (in a more or less conclusory fashion) that the speech in question was not directed to inciting imminent crime. Part III of this Comment introduces speech act theory and the concepts of illocutionary force and perlocutionary effect. it then proposes that focusing...