I’m the US you could potentially be prosecuted for incitement, but the actuall scope under which this prosecution would be successful is pretty narrow because the first amendment gives you the right to free speech.
Basically, for an incitement prosecution to succeed it needs to be that case that your speech would likely (or did) incite imminent lawless action.
So if you were in a lynch mob that had kidnapped someone, and you pointed at a tree and shouted to the mob that they should hang the kidnapping victim, you could probably be successfully prosecuted because your speech could reasonably lead to imminent lawless action.
On the other hand, if you and some other internet weirdos are hanging out the comments section of an internet weirdo magazine and, in the course of a discussion about a corrupt prosecutor the magazine ran an article on, you say that “She should be fed feet-first through a wood chipper”, you would probably not be successfully prosecuted for incitement. That is because your rhetoric is unlikely to inspire imminent lawless action. Most people would recognize it as political hyperbole and thus protected under the first amendment.
That fact, however, might not be enough to keep a prosecutor from investigating you. They might run you through the legal process even though they know they will fail in court since exposing someone to legal jeopardy is extremely stressful and can be ruinously expensive.
She should be fed feet-first through a wood chipper”, you would probably not be successfully prosecuted for incitement.
This is true, up until the point where she is actually fed feet-first through a wood chipper. That she was actually fed feet-first through a wood chipper is prima facie evidence that your rhetoric inspired the lawless action of which you spoke.
In the context of internet weirdos talking online, posts that say a prosecutor should be fed feet-first through a wood chipper are rhetorical hyperbole and obviously not meant literally, even in the case that someone actually committed a murder by feeding a prosecutor feet-first through a wood chipper. Under these circumstances, the speech, while odious, enjoys strong first amendment protections.
For it to be unprotected speech, the rhetoric has to be reasonably likely to be intended to cause the crime, and a prosecution against the internet weirdos would fail for that reason. First because the rhetoric is not actually directed to incitement, it is a more general expression of outrage. The rhetoric is akin to “Someone ought to . . .” and not “You people over there by the wood chipper, do this thing. . .” Second, because the rhetoric has to be related to a crime that is imminent, as in: on the verge of happening, such that the rhetoric is reasonably likely to immediately cause the crime. If a bunch of internet weirdos are on their weirdo site gassing each other up, then a crime occurs at some point in the future, the crime is not immediately related to the rhetoric because it happened at a later date.
A prosecution would also fail if the rhetoric was unlikely to cause a crime even if the speaker intended it to. If the specific prosecutor that earned the ire of the internet weirdos was actually fed feet-first through a wood chipper then that would speak to the likelihood element. As such this factor is more favorable to the prosecution (the ones charging the incitement case, not the one fed feet feet first through the wood chipper, the facts are decidedly unfavorable for her), but even here I think the prosecution would have its work cut out for it as the facts surrounding the rhetoric point to an audiance that is not generally motivated to violence and accustomed to speakers making outlandish claims.
I’m the US you could potentially be prosecuted for incitement, but the actuall scope under which this prosecution would be successful is pretty narrow because the first amendment gives you the right to free speech.
Basically, for an incitement prosecution to succeed it needs to be that case that your speech would likely (or did) incite imminent lawless action.
So if you were in a lynch mob that had kidnapped someone, and you pointed at a tree and shouted to the mob that they should hang the kidnapping victim, you could probably be successfully prosecuted because your speech could reasonably lead to imminent lawless action.
On the other hand, if you and some other internet weirdos are hanging out the comments section of an internet weirdo magazine and, in the course of a discussion about a corrupt prosecutor the magazine ran an article on, you say that “She should be fed feet-first through a wood chipper”, you would probably not be successfully prosecuted for incitement. That is because your rhetoric is unlikely to inspire imminent lawless action. Most people would recognize it as political hyperbole and thus protected under the first amendment.
That fact, however, might not be enough to keep a prosecutor from investigating you. They might run you through the legal process even though they know they will fail in court since exposing someone to legal jeopardy is extremely stressful and can be ruinously expensive.
This is true, up until the point where she is actually fed feet-first through a wood chipper. That she was actually fed feet-first through a wood chipper is prima facie evidence that your rhetoric inspired the lawless action of which you spoke.
In the context of internet weirdos talking online, posts that say a prosecutor should be fed feet-first through a wood chipper are rhetorical hyperbole and obviously not meant literally, even in the case that someone actually committed a murder by feeding a prosecutor feet-first through a wood chipper. Under these circumstances, the speech, while odious, enjoys strong first amendment protections.
For it to be unprotected speech, the rhetoric has to be reasonably likely to be intended to cause the crime, and a prosecution against the internet weirdos would fail for that reason. First because the rhetoric is not actually directed to incitement, it is a more general expression of outrage. The rhetoric is akin to “Someone ought to . . .” and not “You people over there by the wood chipper, do this thing. . .” Second, because the rhetoric has to be related to a crime that is imminent, as in: on the verge of happening, such that the rhetoric is reasonably likely to immediately cause the crime. If a bunch of internet weirdos are on their weirdo site gassing each other up, then a crime occurs at some point in the future, the crime is not immediately related to the rhetoric because it happened at a later date.
A prosecution would also fail if the rhetoric was unlikely to cause a crime even if the speaker intended it to. If the specific prosecutor that earned the ire of the internet weirdos was actually fed feet-first through a wood chipper then that would speak to the likelihood element. As such this factor is more favorable to the prosecution (the ones charging the incitement case, not the one fed feet feet first through the wood chipper, the facts are decidedly unfavorable for her), but even here I think the prosecution would have its work cut out for it as the facts surrounding the rhetoric point to an audiance that is not generally motivated to violence and accustomed to speakers making outlandish claims.
See Brandenburg V. Ohio for more
And I was misremembering my example case. It was not a prosecutor, it was a judge, and she was not corrupt in the traditional sense, just over-punitive according to the internet weirdos. Discussion about the incident from the internet weirdo magazine.