They call it “free speech.” But when calls to protest against ICE operations – allegedly ignited by coordinated social media campaigns from well-funded activist groups – result in blocked freeways, injured officers, and burning cars, a republic must ask a harder question. When online organizing leads to real-world chaos, and federal agents are obstructed from carrying out their lawful duties, who is responsible?

The First Amendment is the bedrock of American liberty, but it is not a shield for lawlessness. The urgent constitutional test we now face is defining the razor-thin line between protected advocacy and prosecutable incitement.

If a group funds, organizes, or directs actions that predictably erupt into violence, should they be protected by the Constitution… or prosecuted under it?

The Brandenburg Test: A Guardrail Against Anarchy

This is not a question of opinion; it is a question of established constitutional law. For over fifty years, the Supreme Court has provided a standard to distinguish protected speech from criminal incitement. In the landmark 1969 case Brandenburg v. Ohio, the Court established a clear, two-part test.

For speech to be considered illegal incitement, it must be:

• “Directed to inciting or producing imminent lawless action,” and
• “Likely to incite or produce such action.”

This is an intentionally high bar. The framers understood that a free society must tolerate even hateful and inflammatory speech. The Brandenburg test was designed not to silence dissent, but to provide a constitutional guardrail against those who would use the language of protest to orchestrate imminent violence.

Applying the Standard: From Organizing to Orchestrating

Through the lens of the Brandenburg test, we can analyze the actions of protest organizers. A group that simply posts a time and place for a demonstration, using fiery rhetoric to condemn federal policy, is almost certainly engaging in protected speech. Their words are not explicitly “directed to” a specific and imminent crime.

But what if the line is crossed? The recent riots in Los Angeles, reportedly sparked by the arrest of SEIU leader David Huerta, provide a stark case study. Activist groups like the Coalition for Humane Immigrant Rights (CHIRLA) and the Democratic Socialists of America (DSA) were prominent in rallying support.

The analysis shifts, however, with reports that rioters were systematically supplied with equipment like face shields, gas masks, and earplugs specifically for confrontations with law enforcement.

When organization evolves into logistical support for violent clashes, the speech is no longer abstract advocacy. It becomes direction. The key words from the Brandenburg test are imminent and likely.

Telling followers to “resist” is speech. Providing a map, a timeline, and the equipment for a violent confrontation is arguably incitement. The first is a call to believe; the second is a plan to act.

The Law of Conspiracy

Even if an organizer’s speech itself is carefully shielded by the First Amendment, their actions are not. Federal law provides clear statutes for criminal conspiracy and the obstruction of justice. The FBI’s reported focus on the “financial connections” behind the riots demonstrates this principle in action.

If individuals coordinate to physically prevent federal officers from performing their duties, that can be prosecuted as a conspiracy, regardless of the political message. The act of planning to break the law is not protected speech. An organizer who posts a public manifesto might be protected, but an organizer who, in a private chat, directs associates to block a federal building can be held accountable for that specific criminal agreement.

The Constitution protects the right to organize a protest. It does not protect the right to organize a crime.

A Two-Pronged Investigation: The DOJ and Congress Intervene

This is no longer a theoretical exercise. The Department of Justice has now announced the formation of a federal task force to investigate the very groups behind these protests. Citing federal conspiracy and obstruction statutes, the investigation aims to follow the money and the communications trail to determine who, if anyone, transitioned from protected protest to criminal enterprise.

This executive branch action is now being paralleled by a legislative one. Senator Josh Hawley, Chairman of the Judiciary Subcommittee on Crime & Terrorism, has launched a congressional investigation to discover “who is funding the LA riots,” with groups like CHIRLA being a primary focus.

This two-pronged approach from both the DOJ and the Senate signals how seriously the issue of organized political violence is being taken. It puts the government’s own interpretation of the Brandenburg standard to the test, launching a high-stakes effort to distinguish between legitimate dissent and coordinated lawlessness.

The outcome will set a powerful precedent.

Responsibility in a Free Society

A stable republic requires both freedom and order. We must fiercely protect the right to advocate for even radical ideas. But we must be equally clear that the First Amendment is not a grant of immunity for those who orchestrate violence and chaos.

The legal framework exists to make this distinction. But applying it requires courage and precision from our justice system. It demands that we look past the surface-level claims of “free speech” and examine the specific actions and intent of those behind the protests.

This leaves us with a series of critical questions:

• At what point does funding travel and supplying gas masks cross the line from supporting a cause to financing a conspiracy?
• Is our legal system capable of distinguishing between a passionate activist and an orchestrator of imminent lawless action?
• If we fail to hold accountable those who organize chaos, do we weaken the very rule of law that protects the rights of peaceful protestors?

A free society does not jail people for their beliefs. But a society of laws cannot survive if it fails to prosecute those who intentionally organize violence. Finding that line is one of the great challenges of our time.