Words Not Said: Can the Brandenburg Incitement Test Cope with Coded Speech?

The Supreme Court’s 1969 decision in Brandenburg v. Ohio introduced a new paradigm for evaluating incitement by looking at whether the speech was intended to induce imminent lawless action by third parties and whether such action was likely to occur. The tripartite test offered by the Court, however, is arguably overprotective of speech that may cause legitimate harm, including coded speech, or speech whose true meaning is not facially obvious. In particular, coded speech—including dog whistles, or speech designed to elicit a specific reaction from certain listeners—may escape the requisite scrutiny under Brandenburg by giving the speaker plausible deniability, despite contextual clues known to all or part of the audience as to the words’ true meaning. Applying speech-act theory, this Note argues that the Court should adopt a more uptake-sensitive approach to incitement, which would allow audience response to assist in determining intent and better capture the veiled manner of such speech.