In 1989, Ayatollah Khomeini’s fatwa called for Salman Rushdie’s death. In 2022, it nearly succeeded—proving words can kill, even decades later.

Under the supposedly controlling Supreme Court precedent of Brandenburg v. Ohio (1969), speech alleged to advocate violence is protected by the First Amendment unless such advocacy constitutes “imminent” incitement. That decision itself asserts that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (emphasis added).

Elsewhere, I have argued that the First Amendment, properly understood, even in light of subsequent amendments, does not restrict the states at all. But let us put that aside and focus on the principal innovation of the Supreme Court in Brandenburg, the test of “imminence.” Advocacy of violence is “imminent” incitement only if the speech is intended to lead, right now or very soon, to the violence it calls for. Suppose the advocacy of violence is an ongoing call for violence, even an ongoing call for violence against a specific human target, without specifying that the violence be carried out right now. In that case, it is not, according to the Brandenburg court, “imminent” incitement and is therefore constitutionally protected.

The question is whether our fundamental rights, even our right to free expression, are adequately protected by Brandenburg’s “imminence” test. Previous free speech decisions had excluded not just “imminent” incitement but even “immediate” advocacy of violence from the protection of the First Amendment. As the Supreme Court said unanimously in Chaplinsky v. New Hampshire (1942):

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words—those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace (emphasis added).

The “fighting words” doctrine in Chaplinsky was in the original case applied to face-to-face street confrontations. Its underlying principle, that some speech is so immediately tied to violence it deserves no protection, should, however, be adapted to address modern threats like incitement that can smolder for years before moving someone to act. While “imminent” refers to the timing of the resulting violence, “immediate” should be understood, in light of our harsh experience since Brandenburg, to refer to the directness of the causal link between the speech and the act, regardless of when the act occurs.

In 1989, Ayatollah Khomeini issued a fatwa, a binding and irrevocable ruling of Islamic law, calling on all Muslims everywhere to kill Salman Rushdie for his supposedly blasphemous novel The Satanic Verses. On August 12, 2022, a California-born Lebanese American, Hadi Matar, stabbed Rushdie while Rushdie was lecturing at Chautauqua, New York. Federal authorities claimed that Matar was motivated by the fatwa, issued years before he was born, and by its 2006 reaffirmation by then Hezbollah General Secretary Hassan Nasrallah, when Matar was still a schoolboy.

Both the Ayatollah and Nasrallah are beyond the reach of American justice, one thanks to an act of God, and one thanks to His winged messengers, the Israeli Air Force. We cannot say of either of them that their call to murder Rushdie had an imminent effect. Yet the effect of this fatwa and its reaffirmation was nonetheless immediate, in that, according to the US Attorney, Matar chose to act on them and stab Rushdie without the mediation of any other person’s or organization’s assistance. Both threats were intended to silence Rushdie and warn off other potential critics of Islam. The fatwa and its reaffirmation were thus immediate threats not only to Rushdie’s life but also to his and everybody else’s freedom of expression regarding the Muslim religion.

The Rushdie fatwa is a clear case of non-imminent incitement. But it forces us to confront more difficult questions about what to do when speakers and leaders target opponents with false and hateful epithets. California Governor Newsom’s Press Office tweeted regarding White House Deputy Chief of Staff for Policy and Homeland Security Advisor Stephen Miller that “STEPHEN MILLER IS A FASCIST.” Minnesota Governor and 2024 Democratic VP Tim Walz said in a May 2025 commencement speech that Immigration and Customs Enforcement agents are “a modern-day Gestapo.” This rhetoric serves the same functional purpose as Khomeini’s religious edict: to target individuals and groups for violence.

It would not be accurate to describe the implied calls to violence in these statements by Governors Newsom and Walz as imminent. Khomeini and Nasrallah could rely on a global multitude of individual radical Shiite Muslims to carry their threats into practice, somewhere, someday. Similarly, Walz and Newsom are seemingly relying on millions of sympathizers throughout America, educated in our schools and colleges and propagandized by our mainstream media, who will translate their false and menacing epithets into “mostly peaceful” action, and thousands who have or are willing to engage in violence against those they have targeted. The violent sometimes conceal themselves under Antifa garb, but sometimes they take a sniper’s position 150 yards from a speaker or politician they have been taught to hate.

Newsom has even signed into law a California bill purporting to require federal agents to unmask while carrying out their operations. Though such a law is manifestly an unconstitutional interference with federal authority, Newsom, if it were up to him, would force ICE agents and their families to live the rest of their lives in fear of murderous violence for the “crime” of attempting to enforce federal immigration law in California.

We need to recognize that not just imminent threats are potentially deadly incitement. “Fighting words” can smolder for years or decades before they move a terrorist to act upon them immediately, without assistance or additional encouragement. Our free speech law needs to protect free speakers, and it needs to ensure that those lawfully appointed and carrying out their lawful duties need not be afraid of lawless vengeance—whether on the streets of Portland, Minneapolis, or Los Angeles today, or in their Sun Valley retirement condos thirty years from now.

All people of goodwill want a more civil society where political conflicts are resolved solely by deliberation and voting. To get there, both officials and ordinary citizens in their capacity as voters and viewers must condemn, mute, sanction, and punish civilly and criminally immediate threats and “fighting words” epithets, whether intended to issue in imminent or “merely” eventual criminal violence.