SALT LAKE CITY — When the legal system considers the fate of the Pittsburgh synagogue shooter and the Florida man charged with mailing bombs to prominent Democrats, decisions by lawyers, judges or juries will be based on an ancient legal principle: Each person is responsible for his or her own actions.
But what if a shooter or bomber was inspired by the words of another?
It’s a question with growing relevance in an age in which public discourse is becoming more volatile, and when anyone with a social media account can rant to global audiences in real-time, without pausing to consider the potential consequences of the words.
While inciting others to violence is a criminal act, it’s not always clear what constitutes incitement, and America is unique in its devotion to free speech no matter how inflammatory, legal analysts say.
“We have a very long history in this country of preservation of free speech, including preservation of free speech on some topics that are sometimes uncomfortable, or are ugly or potentially dangerous,” said RonNell Andersen Jones, the Lee E. Teitelbaum Professor of Law at the University of Utah College of Law.
In the wake of the synagogue shootings, however, supporters of President Donald Trump found themselves defending the president against accusations that his divisive and combative style played a role in the crimes. On “Face the Nation” Sunday, Sen. James Lankford, R-Okla., said the shooting was the work of a “hate-filled individual” alone, but added that the president “doesn’t need to be as caustic in his rhetoric.”
A new survey from the Public Religion Research Institute found that 54 percent of Americans believe the president’s behavior has emboldened white Supremacists. But even as finger-pointing at Trump is increasing, his opponents, to include actor Robert DeNiro and comedian Kathy Griffin, have said and done incendiary things themselves.
Unless inflammatory words provoke an immediate violent act, it’s unlikely that a public figure or social media provocateur would ever be charged with incitement under current law, First Amendment experts say. The solution, according to past Supreme Court rulings, is not found in a courtroom. It's in what's known as the marketplace of ideas.
What qualifies as incitement
Writing for The Washington Post a day after the Pittsburgh shooting, journalist Julia Ioffe was among several columnists who suggested that Trump should share the blame for the violence that claimed 11 lives at the Tree of Life synagogue.
“Culpability is a tricky thing, and politicians, especially of the demagogic variety, know this very well,” Ioffe wrote. “Unless they go as far as organized, documented, state-implemented slaughter, they don’t give specific directions. They don’t have to. They simply set the tone.”
Ioffe later came under fire for an offensive comment herself; she apologized Oct. 29 for saying that the president has radicalized more people than ISIS.
I clarified and apologized on air, but I’ll say it again here. This has been a very emotional and painful time, but I absolutely should not have gone with such hyperbole on the air. I apologize.— Julia Ioffe (@juliaioffe) October 29, 2018
Jurisprudence has traditionally held that an individual alone is responsible for his or her actions — a concept called moral agency. In the 3rd century before Christ, Aristotle described the two conditions for this standard: First, the person had to undertake an act willingly, without being coerced; second, he has to be mentally sound.
But some societies have been willing to share blame through the concept of incitement, and up until the 1960s, America was among them, Jones said.
“We started with a fairly generous standard that basically suggested if words had a bad outcome, that would be enough constitutionally to hold the urging party responsible for the acting party. But that standard didn’t last very long,” Jones said.
Most of the early laws were written when people were afraid of speech, as in the time around World War I when America had significant external threats. But the standard relaxed with the 1969 decision in Brandenburg v. Ohio.
In that case, the American Civil Liberties Union represented a member of the Ku Klux Klan who had been convicted of advocating violence at a speech at a Klan rally. The Supreme Court found that Ohio had violated the Klan leader's right to free speech, and the decision established two principles that remain the standards for incitement today, according to Erwin Chemerinsky, dean of the School of Law at the University of California, Berkeley: "Speech can be punished as incitement only if there is a substantial likelihood of imminent illegal activity and if the speech is directed at causing imminent illegal activity."
In other words, for incitement to be a crime, the violent act would have to happen immediately after the words were spoken, and the words must be clearly intended to provoke the violent act.
Jones gave an example from America's past: If a crowd had gathered outside a jail, and a speaker yelled "Let's hang him," inducing an mob act of violence within minutes, that's incitement, as least as it pertains the law, and it rarely happens today.
But there's another kind of "colloquial incitement" that does increasingly take place in the public square, she said, which is to purposely "engage voters in ways that excite people" and by talking about opponents as enemies instead of people with differing ideas.
“We might be seeing a lot of colloquial incitement in conversations about public concern today. But it’s very unlikely that we are seeing incitement in the legal term,” Jones said.
The role of social media
Earl Warren was chief justice of the Supreme Court and Richard Nixon was the U.S. president when Brandenburg v. Ohio was decided on June 9, 1969, just two weeks before the Republican Nixon installed Warren Burger to replace the liberal chief justice.
At the time the case was decided, the nation was nearly four decades away from the emergence of social media platforms that enable much of today's incendiary words and behavior. While the United States has largely left social media companies to police themselves, other countries are taking a tougher stand. The United Kingdom, for example, allows prosecution of hate speech on the Internet, and a Scottish man was convicted earlier this year of hate speech because he posted a video of a dog doing a Nazi salute. (He was fined the equivalent of $1,100 and later raised $185,000 on a crowdfunding website.)
And last year, Germany passed a law that requires Facebook and other social media companies to remove hate speech within 24 hours or face a multimillion-dollar fine.
“As progressive a country as Germany is, and as progressive as Israel is, their political systems don’t match ours, and their open acceptance of speech is not as wide as ours,” said Sara F. Hawkins, a Phoenix attorney who regularly writes about free speech and social media.
Although the U.S. Supreme Court has not addressed the question specifically, Hawkins said, “The incitement of violence is not protected speech, anywhere. And yet we haven’t quite figured out what incitement is when it comes to social media because social media is filled with so much hyperbole.”
A defense of humor also sometimes deflects a charge of incitement. During the 2016 campaign, then-candidate Trump made a remark that some people took as a joke, others as a veiled call for violence to his Democratic opponent Hillary Clinton.
“Hillary wants to abolish, essentially, the Second Amendment,” Trump said. “By the way, and if she gets the pick — if she gets the pick of her judges, nothing you can do, folks. Although the Second Amendment people, maybe there is, I dunno.”
The Scottish man who trained his pug to do a Nazi salute said that was a joke, too.
The actor DeNiro, however, was not joking in savage diatribes he has made about Trump, including his expletive-filled denouncement at The Tony Awards in June, and a video in which he called the president a punk and a pig and said he'd like to punch him in the face.
When inflammatory language doesn't immediately result in a criminal act, Hawkins notes there is already a punishment for people who cross the line of propriety.
“Look at Kathy Griffin; talk about someone who paid a price with her career,” she said. Griffin, who posted a picture of herself holding a decapitated “head” of Trump, lost her job hosting a New Year’s Eve broadcast on CNN and was widely ostracized. Griffin has also said she was investigated by federal agents for possible conspiracy to assassinate the president.
“I think a lot happens that we don’t hear about. Somebody makes a credible threat and the government suppresses it," Hawkins said.
The 'scourge' of reasoned discourse
Lyrissa Barnett Lidsky is dean of the University of Missouri School of Law, and has spent much of her career defending people who engage in rhetorical hyperbole from criminal and civil liability on First Amendment grounds.
“That doesn’t mean that rhetorical hyperbole, when widespread, isn’t the scourge of reasoned, civic discourse. There’s a difference in where we draw the line for First Amendment purposes and what’s good for civic discourse,” she said.
Many of Trump's supporters, however, enjoy his combative style, saying his tell-it-like-it-is persona is a refreshing change from politics as usual. And there has always been rhetoric in campaigns.
Lidsky believes the rhetoric has become harsher in the past decade, however, with people calling their opponents enemies instead of people with whom they disagree on issues. There is “extreme vilification of one’s political opponents, on both sides,” she said, which is not good for society, whether or not it’s legal, she added.
“The larger point here is, the First Amendment is not the only consideration in these debates. Even if it won’t technically subject the speaker to criminal prosecution, it can still be a terrible idea to throw this kind of rhetoric around.
“It might be the case that we should demand more of our public officials and ourselves in terms of civility and public discourse knowing we raise the likelihood by creating a certain kind of climate that some terrible people may do terrible things.”
While the Brandenburg case defined cases where incitement could be a crime, its focus on the immediacy of a violent action also points out the remedy for volatile speech: time.
“If there’s time for the audience members to reason out that violence is a bad idea, then they, and not the speaker, are responsible for their own violent actions,” Lidsky said.
Social media, while enabling immediacy, can also enable a more thoughtful, reasonable response, said Jones at the University of Utah.
“All of us have the opportunity to sign in and say, ‘That’s evil, that’s inappropriate, that’s racist. I stand for something different,'” she said.
“When we hear politicians engaging in language we think is not civil, not fair, not healthy to a democracy, we can condemn it, and say that’s not the way we talk, and it’s certainly not a way we speak when we’re in a position of leadership. In that sense, the conversations we’re having about lowercase 'i' incitement are really important.”