Traditional free speech doctrine is inadequate to account for modern terrorist speech. Unprotected threats and substantially protected lawful advocacy are not mutually exclusive. This Article proposes recognizing a new hybrid category of speech called “terrorizing advocacy.” This is a type of traditionally protected public advocacy of unlawful conduct that simultaneously exhibits the unprotected pathologies of a true threat. This Article explains why this new category confounds existing First Amendment doctrine and details a proposed model for how the doctrine should be reshaped.
Martin H. Redish and Matthew Fisher,
Terrorizing Advocacy and the First Amendment: Free Expression and the Fallacy of Mutual Exclusivity,
86 Fordham L. Rev. 565
Available at: http://ir.lawnet.fordham.edu/flr/vol86/iss2/10