Recalibrating the cost of harm advocacy: getting beyond Brandenburg.

Author:Malloy, S. Elizabeth Wilborn

[T]he suggestion that the first amendment ties our hands in dealing with ... revolutionaries ... is an unintended intimation of that most frightening of constitutional conceptions: the Constitution as a suicide pact.(1)

Nowadays the First Amendment is the First Refuge of Scoundrels.(2)


Freedom of speech is not absolute. With the possible exception of Associate Justice Hugo Black,(3) the Justices of the Supreme Court of the United States have noted frequently that freedom of speech does not protect an unlimited class of speech-related activities.(4) Perhaps most famously, Justice Holmes explained that "[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic."(5) Consistent with this view, the Supreme Court has sustained, against free speech objections, civil liability sounding in tort and contract, and upheld regulations prohibiting fraud, sexual harassment, and conspiracy.(6)

Indeed, consistent with the First Amendment, the government may virtually regulate out of existence certain kinds of expressive materials, such as obscenity,(7) and certain kinds of expressive conduct, such as nude dancing(8) or the burning of draft registration cards.(9) If one begins to consider in a systematic fashion the recognized exceptions, the free speech protection afforded by the First Amendment might begin to seem rather meager. A cynical person might submit that the First Amendment's protections are limited largely to prohibiting government censorship based on viewpoint and the creation of prior restraints. Of course, one might decry this state of affairs and urge a more expansive interpretation of the Free Speech and Assembly Clauses.(10) The fact would remain that the federal courts have sustained a panoply of speech restrictions when necessary to protect important government interests.

Undoubtedly, free speech imposes social costs on the community.(11) At its most basic, the use of public property for speech activity often precludes the property from being used for other, perhaps more usual, purposes. If a group of protesters stages a rally in the town square, those who wish to use the square for quiet contemplation are simply out of luck. Relatedly, if a pamphleteer distributes tracts that the uncaring public cavalierly tosses upon the sidewalk, the community is forced to absorb the cost of visual blight or additional street sweepers. Generally, the Supreme Court has prohibited government from redistributing the cost of speech activities to those engaged in a particular speech activity.(12) This is especially so when the costs are related directly to the local community's antipathy toward the speaker's message.(13)

No reasonable person would quibble with these rules. The federal courts should not countenance a "heckler's veto." That said, it does not require great imagination to conjure up a host of perfectly constitutional restrictions of free speech. Indeed, this Article already has sketched a number of scenarios in which government is permitted to tax the costs of the speech activity against the speaker.(14) If a moviegoer falsely shouts "fire" in a crowded theater, she is exposed to liability for the consequential damages resulting from the stampede for the door, including the injuries suffered by fellow patrons, lost revenue on the part of the theater owner, and perhaps even the costs associated with the dispatch of the local fire company.(15) Unlike the itinerant street minister,(16) the tortfeasor shouting "fire" in a crowded theater is liable for the full social costs of her speech activity. Obviously then, the fact that someone engages in speech activity or expressive conduct does not automatically insulate them from liability for the social harms caused by their speech activity or expressive conduct.(17) The question is more subtle: Sometimes the costs are imposed on the speaker, and other times they are not.

This squarely presents the question of whether and when the government may assign the social costs of speech activities against speakers. Someone falsely shouting "fire" in a crowded theater can be made to pay, whereas the street minister cannot. Where do other cases fall and why? Between these two points lies a continuum. Can the state tax the costs of hate speech against speakers? The answer appears to be "no," at least not directly.(18) Suppose that a "gangsta" rapper advocates the murder of members of the local police force as a necessary incident of producing a social revolution, the product of which would be a more egalitarian society?(19) From a rather traditional point of view, the answer to this question should also be "no." Perhaps the answer should be somewhat less absolute.

If the hypothetical rapper merely advocates the killing of police officers in the abstract, settled case law would suggest that the speech is protected.(20) Absent a "clear and present danger" of an "imminent" risk of assassination, the state could not criminalize the speech.(21) Suppose, however, that the rapper is a bit less abstract, that she advocates the killing of a specific police officer, for example, Officer Mark Furhman. Does the case become more difficult? At least arguably, it should. As one moves from the mere abstract advocacy of a particular kind of legal wrong toward the advocacy of a specific crime, the risk of social harm increases. As one moves farther away from impassioned calls to proletarian revolution and closer to the direct advocacy of particular social harms, against specific persons, the potential cost of the speech activity increases precipitously, although the contribution of the speech to the project of democratic deliberation remains, at best, constant.(22)

A further slight modification of the hypothetical makes the point a bit more vividly. Suppose the rapper not only advocates the assassination of Mark Furhman, but also reports his home address, telephone number, car make and model, and license plate number. She even includes his favorite restaurants and bars, and the times at which he usually can be found in a particular place. The hypothetical begins to look more and more like the solicitation of a crime, rather than the expression of an abstract political idea. One can frame the issue even more starkly: suppose the rapper also provides detailed instructions on how to obtain an unregistered pistol and ammunition. The rap song now advocates the death of a particular police officer, provides accurate details about his whereabouts and personal habits, in addition to detailed advice on where to obtain an illegal weapon. These facts arguably place the hypothetical case much closer to shouting "fire" in a crowded theater than to peacefully distributing leaflets in the town square.

The hypothetical rapper is advocating the murder of a specific individual and providing crucial information to facilitate the assassination. If someone uses this information to kill Mark Furhman, may the rapper disclaim any legal responsibility for the crime based on a First Amendment defense? This problem extends beyond the hypothetical rapper. Recently, many racist and anti-Semitic hate groups and other fringe organizations have provided information in books and over the internet on dedicated web sites on how to build bombs, pollute water supplies, and build weapons.(23) The time has come to ask whether the social costs of such "Harm Advocacy"(24) must be taxed against individual victims and the community at large. At least in some circumstances, the courts should be able to impose the cost of this Harm Advocacy on the speaker, provided that the rules used to assign such costs do not unduly chill otherwise protected expression.

Of course, if the government were to attempt to impose liability for this sort of speech activity, it would be essential to ensure that the mens rea requirement, the causation requirement, and the evidentiary burden of proof are sufficient to provide adequate breathing room for routine works of art. Tom Clancy, Stephen King, Agatha Christie, and Patricia Cornwell write books featuring grossly antisocial behavior.(25) Nevertheless, these fictionalized works do not constitute Harm Advocacy and should not be suppressed.(26) It is, of course, possible that someone might read a novel by Clancy, King, Christie, or Cornwell and decide to enact the fictionalized behaviors.(27) That said, this Article does not advocate the imposition of unlimited liability for authors and songwriters; such an approach would be antithetical to the core functions of the First Amendment.(28) Writers such as Clancy, King, Christie, and Cornwell are not soliciting crimes; their goal is to entertain.(29) The hypothetical rapper, on the other hand, seems to be standing much closer to the line.

This Article explores the possibility of shifting the cost of antisocial acts to artists, writers, and musicians when individuals decide to act on a creative artist's suggestions or, in some cases, detailed directions. The Article concludes that, at least in some limited circumstances, the First Amendment should not preclude the imposition of civil liability for those who write and distribute speech that both advocates and facilitates harm to others and proposes the creation of a new category of unprotected speech activity called Harm Advocacy.

The contemporary First Amendment speech categories do not address adequately the social costs associated with speech intended to facilitate antisocial behavior. When addressing the damage from speech that advocates harm, the federal courts routinely have applied the Brandenburg v. Ohio test, a test designed to protect political speech and the abstract advocacy of violence or revolution.(30) Brandenburg held that speech cannot be the basis for civil or criminal sanctions unless it both advocates lawless conduct and poses a grave risk of actually inciting imminent harm.(31) Because instructional...

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