Their lawyers may try, but if their speech is found to have encouraged law-breaking, they can still be convicted and jailed — regardless that they only did it for sport.
> In 1969, the Supreme Court's decision in Brandenburg v. Ohio effectively overturned Schenck and any authority the case still carried. There, the Court held that inflammatory speech--and even speech advocating violence by members of the Ku Klux Klan--is protected under the First Amendment, unless the speech "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action"
I'm not convinced that's the proper reading of that law. FWIW, I'm not a lower just a person with an appreciation of legal questions. I was under the impression that the word 'imminent' implied you had to reasonably be aware those people were going to commit a crime immediately. For example if you're at the front of a mob of angry people and tell them to go loot a shop. I think it would be hard to convincingly say that on a website where 99% of users are joking that posters were inciting crime directly.
Knowing is a very fuzzy bar here. There are/were people who turned to 4chan's /b/ (or other boards) for a very twisted way of guidance. ("Should I kill myself?", "shoot up the school", do "an hero" etc.)
Of course in these cases the Internet Hate Machine's response is the same, but the intensity and effectiveness varies.
Is any single commenter legally responsible? Probably not. And not because they lacked intent, but because 99.9% of these threads are empty trolling. So they could be almost sure knowing nothing would happen.
However, if someone does this for years in the hopes to participate in a thread that is not a dud, well that's of course a different state of mind, but it'd be hard to prove.
"Encouraging law-breaking" and "inciting imminent lawless action and likely to incite it" are different standards. The former sweeps up a large swath of stuff, everything from "Smash capitalism!" on down. The latter is much more constrained, and requires both immediacy and a likelihood of results.
https://www.theatlantic.com/national/archive/2012/11/its-tim...
> In 1969, the Supreme Court's decision in Brandenburg v. Ohio effectively overturned Schenck and any authority the case still carried. There, the Court held that inflammatory speech--and even speech advocating violence by members of the Ku Klux Klan--is protected under the First Amendment, unless the speech "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action"