Sticks and Stones: How Words Can Hurt

Abstract

In 1969, in Brandenburg v Ohio, the United States Supreme Court held that speech tending to promote lawlessness or advocating illegal activity cannot be restrained by criminal law unless the speech "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." The Brandenburgstandard, which applies to the use of civil as well as criminal sanctions to regulate free speech, reflects the Court's belief that the free competition of ideas, rather than censorship, is the preferred means of eliminating "bad" ideas in the public consciousness. Courts and constitutional scholars alike are in discord over the appropriateness of the First Amendment's protective veil, particularly when it functions to protect materials that instruct on how to perform illegal or harmful activity and negligent publications that contain misinformation, reliance upon which leads to injury. This Note explores the various types of litigation private parties have used in attempting to impose liability on speakers whose speech resulted in such harm.