The article is here; some excerpts from the Introduction:
An enraged King Henry II famously asked several of his barons, while the court met in Normandy at Christmas in 1170, "Will no one rid me of this turbulent priest?!" King Henry was referring, of course, to Thomas Becket, the incumbent Bishop of Canterbury and head of the Roman Catholic Church in England. Becket had steadfastly insisted on preserving the independence of the ecclesiastical courts and authority over bishopric appointments (much to King Henry's dismay). Subsequently, four of these same barons went from Normandy, in France, to Canterbury, in England, and proceeded to assassinate Becket, on December 29, 1170, while he was conducting a prayer service in Canterbury Cathedral. The perpetrators (shockingly) escaped the king's justice. Perhaps Becket received some small justice, however, when Pope Alexander III proclaimed him a martyr and saint on February 21, 1173.
Could Henry II's musing, consistent with the requirements of the First Amendment, serve as a basis for criminal charges in the contemporary United States? On a first cut, one might answer this question negatively. After all, Henry II was in France; Becket was in England. His speech could not have produced an "imminent" threat to Becket's safety. On the other hand, the barons who assassinated Becket did so only four days after Henry II pondered aloud his abstract desire to be rid of "this turbulent priest"—which, for the Middle Ages, constitutes a rather rapid response.
Even if Henry II might not be on the hook for criminal incitement charges, which under the Brandenburg test require both a clear call to unlawful activity and circumstances in which the speaker's audience would likely act on the suggestion of unlawful action, a clever prosecutor in today's United States could evade the Brandenburg rule entirely through the expedient of charging Henry II with solicitation or conspiracy (rather than incitement). Would the First Amendment preclude solicitation charges on these facts? Or, for that matter, conspiracy charges? Moreover, should changing the criminal charges fundamentally affect the governing First Amendment analysis?
Current free speech doctrine offers a less than clear answer—but most likely solicitation charges would stand up against a Free Speech Clause challenge. The controlling Supreme Court precedent on point, Williams, decided in 2008, seems straightforwardly to hold that proposing a criminal action enjoys absolutely no First Amendment protection. The Supreme Court doubled down on this approach in 2023, in Hansen, holding that "[s]peech intended to bring about a particular unlawful act has no social value; therefore it is unprotected [under the First Amendment]."
