In this Comment the Author compares divergent applications of the Brandenburg "incitement" standard at the district and appellate court level in Rice v. Paladin Enterprises, Inc. The Author criticizes the district court's incitement analysis for failing to consider the extent to which context governs the meaning of language and the corresponding extent to which the instructions in Paladin's publication of the "Hit Man Manuals" could conceivably, uniquely constitute incitement under Brandenburg.
Ultimately, the Author argues that "at the heart of the district court's unexamined ruling ... is an incitement standard that needs reworking." Hence, the Author explores the usefulness, feasibility, and need for a more detailed and realistic standard, in particular one which ensures that violent crime instruction manuals, like that at issue in Rice, are closely examined for their potential to incite imminent lawless action.
Incitement By Any other Name: Dodging a First Amendment Misfire in Rice v. Paladin Enterprises, Inc.,
25 Hastings Const. L.Q. 605
Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol25/iss4/4