In response to Duncan to Full Senate
As Ian observes, Charlie rightly insists on the importance of the rule of law in repeating, in the context of the Ferguson cop shootings, the argument against collectivizing guilt that he made in connection with the New York cop shootings late last year. That is why I continue to be unconvinced by it.
The rule of law includes laws against incitement, just as it includes laws against murder. There is no sound interpretation of free speech that has ever extended the principle’s protection to words intended to provoke violence – or, as we construe intent, reckless words that the speaker should have known would provoke violence yet utters anyway.
My problem with Charlie’s eloquent contentions is that they oversimplify the situation. He points out that the Ferguson officers “were not shot by” various agitators (Obama, Holder, Sharpton, the media), nor did these agitators “force” the shooter to pull the trigger, nor “commission” his crime. For Charlie, it seems so cut-and-dried: there is the shooter, who is guilty; no other person can rightly be deemed culpable unless he essentially coerced the murder – encouragement doesn’t count. The rabble-rousers, because they don’t quite coerce and aren’t quite co-conspirators – should be seen as mere “bystanders,” blameless for the perpetrator’s act regardless of anything they may have done, no matter how knowingly, to make the act more likely.
To the contrary, our law recognizes that there are many criminal gradations between innocent and murderer. They include not only incitement but “aiding and abetting” – an offense that covers acts reasonably construed as encouragements that, in the statutory language, “counsel, command, induce, or procure” the commission of a crime.
Charlie is right that guilt should not be collectivized. But it should be apportioned. Incitement is not murder and should not – indeed, it is not – punished as severely as murder. But it is an offense nonetheless.
Putting the law aside, there are political and moral forms of culpability. Because all bystanders do not have the same duties, they should not all be said to be equally lacking in culpability. A public official who has a duty to maintain the peace but instead stirs the pot and tells people on the edge of violence that their rage is justified bears responsibility when events take their predictably awful course. No, such public officials must not be charged with murder, but neither should they be public officials.
Because I don’t see that what has happened in Ferguson is materially different from what happened in New York, I will repeat what I wrote about the latter:
Incitement is not as serious an offense as the murder and mayhem it can result in, but it is still a serious wrong. As a matter of law, incitement to violence is so serious that we criminalize it — meaning the violence called for need not even happen for the inciter to be prosecuted. Consequently, when murder and mayhem do follow from incitement, of course we should regard the inciters as partially responsible.
What about free speech? The First Amendment does not guarantee “freedom of speech”; as Ed Whelan has sagely pointed out to me, it forbids Congress from “abridging the freedom of speech.” The definite article makes a difference. The freedom of speech has always been a finite carapace, not an open-ended license. As the late Judge Robert Bork argued, bolstered by such precedents as the Supreme Court’s 1942 Chaplinsky v. New Hampshire ruling, there have always been well-known exclusions from it, including speech that is slanderous, obscene, or profane; or speech intended to instigate lawlessness, particularly “fighting words” meant to provoke violence.
I prosecuted the Blind Sheikh for soliciting terror attacks against American military installations. When a mafia don in a café tells his button man, “Whack that guy,” he has no First Amendment defense to a murder charge when the guy predictably gets whacked. Naturally, our law has developed principles for judging the intent of the speaker and the likelihood of violence: We ensure that the fan who vacantly yells, “Kill the umpire!” is not treated as if he really wants the umpire killed, and that someone who is merely teaching students about a violent doctrine is not treated as if he were advocating violence. But the bottom line is that speech calling for lawlessness is worthy of little, if any, protection. Speech calling for violent lawlessness can be legally actionable and should be deemed morally culpable.
The freedom of speech is principally about creating a wide berth for political discourse. And despite being the most deserving of protection, even political speech has always been limited by time, place, and manner restrictions.
The “Hands up, don’t shoot!” slogan is a fraudulent rendition of the Michael Brown shooting, but it is clearly political speech presumably intended, however wrongheadedly, to advance policy arguments about institutional racism and police brutality. It may not be forbidden. The state does, however, have the power to forbid it from being yelled outside my bedroom window at 2 o’clock in the morning. And it has a duty to forbid it from morphing into calls for killing police and a license to shut down major thoroughfares — such that police, fire-fighters, and ambulances cannot respond to emergencies, people cannot get to their jobs and homes, and merchants cannot operate their businesses.
People who organize mobs knowing full well that eruptions of violence are foreseeable are culpable when violence erupts. You want to say they are not guilty of murder? Fine, but that should not absolve their contributory responsibility for the loss of life that predictably occurs. The same goes for others who incite the mob: those who call for the killing of cops. They are not equally as culpable as the murderer. That’s why our law punishes murder more harshly than it does incitement. But those who incite are proportionately responsible — and when what they are inciting is atrocious, they should be regarded as atrocious, too.
Public officials also bear responsibility because they have special duties. They are keepers of the order that must be assured if liberty is to thrive. They are not like the average 21-year-old anthropology major bemoaning the police because “black lives matter” — notwithstanding that the cops protect millions of black lives while the nitwit student protects none. When public officials signal to the mob that its anger is so justified that its criminal behavior, even if not exactly condoned, will be rationalized, minimized, or ignored, they are facilitating criminality. So of course they should be deemed contributorily culpable when the criminality happens.
To say that the mayor, the attorney general, and the president are not guilty of last weekend’s murders of two police officers is not to say they are blameless. To distinguish them from the murderer is not to pronounce them suitable for the weighty public trusts they hold. There is guilt here to be apportioned. Apportioning it is not collectivizing it — it is not engaging in the same convoluted demagoguery that blamed Sarah Palin’s electioneering for a mass-murder in Tucson by a man with a history of mental illness, or that blamed bourgeois America for the killing of John F. Kennedy by a Communist.
A radical movement has openly called for the killing of cops. The officials responsible for keeping order abdicated their duties, and cops predictably started being assaulted and killed. We should not tar all the culpable actors with the same brush, but we should absolutely hold them accountable for what they have done.