Incitement Lite for the Nonpublic Forum

The incitement exception set out in Brandenburg v. Ohio defines the authority of the government, acting in its sovereign capacity, to impose criminal punishment on speakers because the content of their advocacy may persuade listeners to commit crimes. Nonpublic forum managers have much greater flexibility than the government-as-sovereign to restrict the private speakers they invite onto their property because the content of their speech may persuade listeners to engage in harmful conduct. In nonpublic forum management, speakers experience no sanctions and, unlike the government-as-sovereign, nonpublic forum managers may close their forums to all private speakers to avoid unwanted speech. This piece argues that, in the context of the nonpublic forum, where the heavy threat of criminal punishment does not exist, some form of “incitement lite,” with elements adjusted to fit the different balance of government authority and individual speech rights and impacts, may better implement the spirit that animates and explains the exception