First Amendment
United States v. McKee, 987 F.3d 1234 (10th Cir. 2023)
Study notes for United States v. McKee: professor notes, cold call prep, exam angles, and memory aids.
Speech that incites imminent violence against government institutions does not receive First Amendment protection.
In United States v. McKee, the court emphasized the delicate balance between protecting free speech under the First Amendment and ensuring national security. McKee utilized various online platforms to disseminate messages that explicitly encouraged violence against governmental institutions, which the court deemed unacceptable. The ruling highlights the relevance of the 'imminent lawless action' test from Brandenburg v. Ohio, signifying that speech advocating violence must present a clear and immediate threat to be considered outside First Amendment protections. Professors may stress how this case reflects ongoing tensions between free expression and the imperative to maintain public safety.
McKee's speech = Imminent Threat = Not Protected
| Case | Distinction |
|---|---|
| Brandenburg v. Ohio | In Brandenburg, the speech was abstract and not directed at inciting imminent lawless action; McKee's speech called for direct action against specific government entities. |
| Virginia v. Black | Virginia v. Black dealt with cross burning, a symbol of hate, which the court deemed protected unless it instigated immediate violence; McKee's case involved direct encouragement of violence. |
| Snyder v. Phelps | Snyder v. Phelps involved public protests protected as speech on public issues; McKee’s statements directly targeted government institutions with actionable threats. |
Prohibiting incitement to violence against government institutions is necessary to maintain public safety and protect national security.
Broad limitations on speech can lead to overreach and may stifle legitimate discourse and dissent within a democratic society.
This case may appear on exams as a pivotal example of the limits of First Amendment protections, particularly in scenarios involving online speech that may incite violence. Students should analyze the application of the 'imminent lawless action' standard and its implications for contemporary discussions about speech and security.