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Rethinking Supreme Court rulings and 'imminent lawless action' for the social media age [1]
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Date: 2023-02-28
Brandenburg was issued in 1969. In throwing out the conviction of an Ohio Ku Klux Klan leader for advocating violence against Black people, Jews, and their allies, the court held that speech can only be punished if it is intended to advocate illegal conduct that is both imminent and likely. The decision explicitly overruled 1927’s Whitney v. California, which held that mere advocacy of violence posed such an existential danger that the government was well within its rights to criminalize it.
The decision offered by the court found that mere advocacy of violence was not enough to justify criminal charges. Rather, advocacy could only be criminalized if “such advocacy is directed to producing imminent lawless action and is likely to produce such action.”
It has been argued that this standard had the effect of superseding the previous guideline for determining whether speech was protected—whether such speech posed a “clear and present danger.” However, according to anthropology professors Richard Ashby Wilson and Jordan Kiper, when Justice William Brennan crafted the concept of “imminent lawless action,” he was taking his cue from the man who first articulated the “clear and present danger” standard, Justice Oliver Wendell Holmes.
In 1919, writing for a unanimous court in Schenck v. United States, Holmes noted that Congress—and, by extension, the states—could regulate the words people say when those words were “of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” He cautioned, however, that such laws must consider “proximity and degree.”
Holmes’ standard wasn’t fully adopted until the court decided Herndon v. Lowry in 1940. It is best known as one of the earliest findings that the First Amendment right to peaceable assembly was binding on the states via the 14th Amendment’s liberty clause. However, Justice Owen Roberts—later known as the head of the commission that investigated the Pearl Harbor attack—wrote that any limit on speech “must find its justification in a reasonable apprehension of danger to organized government”—an almost verbatim expression of Holmes’ arguments 20 years earlier.
Using this reasoning, the court tossed out Georgia’s law on insurrection and syndicalism; it had been used to convict a labor activist for merely possessing communist literature. Roberts wrote that the law was too “vague and indefinite” to pass First Amendment muster.
The standard that the government can only limit speech if it poses imminent danger seemed like a reasonable way to balance what may be the closest thing to an absolute right with the need to maintain order. However, Wilson and Kiper noted that when the court decided First Amendment cases before Brandenburg, it usually did so based on “advocacy and content, rather than context and immediate circumstances.” The result was that in many cases, jurisprudence reverted to the “bad tendency” standard, which held that the mere tendency to incite or cause illegal activity was considered “an existential threat to stability and order.”
However, Wilson and Kiper argue that Brandenburg solved one problem while creating another. It represented a clear break with decades of “oppressive” government regulation of speech. Instead, Brandenburg held that, if speech is to be criminalized, it must not only advocate violence, but such violence must be both imminent and likely. However, the four-page opinion provided little to no guidance on how this test is to be applied.
It has long been understood that direct advocacy has been a key element in determining whether speech crosses the line into incitement. Longstanding precedent holds that restrictions on speech must be content-neutral and viewpoint-neutral, and that the government cannot punish provocative speech that may, rather than will, cause disorder. Such restrictions must withstand strict scrutiny—the highest level of judicial review.
However, Brennan’s opinion offers no clarification on how imminent potentially lawless action must be for government restriction to pass muster. Subsequent decisions have thrown out convictions for advocating violence on the grounds that the violence didn’t take place soon enough after the advocacy, or because the call for violence wasn’t for a specific time frame. There is even less guidance on the likelihood of a lawless act. Considering how high the bar is set for government action to pass constitutional muster, this is problematic in the extreme.
The lack of such guidance has made it difficult to apply the Brandenburg precedent at a time when incendiary speech has risen to a fever pitch. The situation with Kiwi Farms exemplifies this perfectly. Cloudflare noted in the announcement that it was dropping Kiwi Farms and that it had been working with law enforcement for two weeks to respond to “potential criminal acts and imminent threats to human life” from Kiwi Farms posters. However, according to The Washington Post, the breaking point appeared to be a torrent of posts in which Kiwi Farms users posted addresses of perceived enemies and called for them to be murdered.
RELATED STORY: Web security company Cloudflare cuts ties with notorious trolling and harassment site KiwiFarms
Something is wrong—very wrong—if this isn’t enough for law enforcement to act. And yet, when Cloudflare pulled the plug on Kiwi Farms, a number of critics claimed this was a bridge too far. Take Glenn Greenwald, for instance.
x This went *way beyond* deleting a post or a Twitter banning. Like the destruction of Parler, it was a major escalation in internet censorship.
Now, one article from liberal media employees - calling someone "fascist" or "dangerous" or whatever - gets the entire site banished. — Glenn Greenwald (@ggreenwald) September 9, 2022
Similarly, Krystal Ball and Saagar Enjeti claimed that nuking Kiwi Farms was a potential slippery slope to more censorship.
What Greenwald, Ball, and Enjeti don’t realize is that at this stage in the game, Cloudflare was placed in a position where if any harm had befallen Keffals or anyone else, it was likely to be sued out of existence. After all, Cloudflare’s Acceptable Hosting Policy explicitly forbids “content that discloses sensitive personal information” and “incites or exploits violence against people or animals.” While it is patently insulting for Cloudflare CEO Matthew Prince to claim that nuking sites like Kiwi Farms would give dictatorships more ammunition to demand that his company pull services from human rights sites, he does have one point: There needs to be a way for tech companies to work with authorities to ensure due process.
That need was apparent long before we even heard of Kiwi Farms. All too often in recent years, we’ve seen people who dare to oppose Trump forced out of the public arena in the wake of violent threats against them or their loved ones.
One of the ghastliest examples of this involves Lindsey Simmons, who was the Democratic challenger in 2020 against four-term Republican incumbent Vicky Hartzler in Missouri’s 4th congressional district, which stretches from the southern suburbs of Kansas City through mid-Missouri. Simmons had been an aide to longtime Democratic Rep. Ike Skelton, whom Hartzler defeated in the 2010 Republican tsunami. Since then, no Democrat has managed even 40% of the vote in this district. It was once a classic Yellow Dog Democrat district, but was already turning an unrecognizable shade of red before Skelton was capsized in 2010. No Democratic presidential candidate has managed to grab 40% of the district’s vote since the turn of the millennium.
Simmons fared no better, losing to Hartzler 67-29 and raising only $395,000 for the entire cycle to Hartzler’s $1.7 million. When KSHB in Kansas City, the NBC affiliate for much of this district’s western portion, offered Hartzler and Simmons a chance to tell voters where they stand, Simmons took KSHB up on the offer—but Hartzler didn’t.
But while watching the Jan. 6 committee hearings, Simmons revealed that during the campaign, she had to deal with concerns more fundamental than raising money. She’d been the target of threats so severe that sometime in Sept. 2020, she had to move her young son elsewhere for the rest of the campaign.
x What you’re watching right now is why I am not running for office again.
Two months before Election Day 2020 I no longer felt it was safe for my son to live with me.
I blamed myself for bringing violence into his life.
And I will not knowingly do that to him again. — Lindsey Simmons (@LynzforCongress) June 21, 2022
RELATED STORY: Missouri Democrat who ran in 2020 says she won't run again because she fears for family's safety
One would think that even in a crimson-red area, threats of this magnitude would be the equivalent of a five-alarm fire. Lest you think this is hyperbole, the Brookings Institution recently noted that the fear of political violence has been an almost nonstop issue in this country since a pro-Trump mob swarmed into the Capitol on Jan. 6. It’s a fear seemingly confirmed when Paul Pelosi, the husband of then-Speaker Nancy Pelosi, was attacked in his own home. Politico reported the assailant, Paul DePape, who was immersed in extremist conspiracies, wanted to kidnap Nancy Pelosi. According to prosecutors, DePape felt that the then-speaker embodied “evil in Washington.”
RELATED STORY: Pelosi attacker 'really believed in the whole MAGA, Pizzagate, stolen election'
According to Simmons, that threat hung over red America long before the MAGA hordes flooded into the Capitol. She fired off this tweet while watching Georgia election workers Shaye Moss and Ruby Freeman testify about the vicious, racially tinged harassment and threats they endured after Trump and Rudy Giuliani falsely accused them of being part of a scheme to steal Georgia for Biden.
According to Moss, pro-Trump thugs barreled into her grandmother’s house intending to make a “citizen’s arrest.” Incredibly, according to Mother Jones, rather than do anything to stop this horror, law enforcement suggested that Moss and Freeman hire private security—something they couldn’t afford.
RELATED STORY: Trump continues terror campaign against Black women poll workers who testified to Jan. 6 panel
An environment in which people are harassed and trolled into silence is not conducive to free speech. When you have such an environment, you don’t have democracy. At risk of using a term that has been ruined forever, you have mobocracy. And yet, it seems that law enforcement is hamstrung by an understanding of “imminent lawless action” that is not adequate for our time.
Fortunately, Wilson and Kiper offered a solution in the Jan. 2020 edition of the University of Pennsylvania’s Journal of Law & Public Affairs. They proposed a 10-part matrix for assessing the risk of potentially incendiary speech.
1. The speaker occupies an official position of authority within government or a political party or political movement. 2. The speaker is perceived by supporters as credible or charismatic. 3. The speaker has regular access to means of mass communication, or the ability to control information, or to suppress alternative sources of information. 4. The message contains explicit or implicit calls for violent acts against members of an outgroup. 5. The message dehumanizes an outgroup, or expresses disgust for an outgroup, or calls for acts of revenge against an outgroup. 6. The message identifies a direct threat to the ingroup and identifies a clear and foreseeably violent course of action that can be taken by listeners imminently to remove the source of the threat. 7. There is a history of intergroup conflict between the ingroup and outgroup, and the number of instances of intergroup violence has increased overall in the previous twelve months. 8. There is a major national political election in the next twelve months or there was a major national political election in the last twelve months. 9. There is significant polarization of political parties along religious, ethnic, or racial lines. 10. The emotional state of the audience at the time of the message appears heightened and predisposed toward violent activity.
Wilson and Kiper argue that their matrix is girded on an “evidence-based approach to risk assessment” based on over half a century of research on how speech affects listeners. This matrix calls for courts to consider “the attributes of the speaker, the content of the message, and the context in which the message is delivered.”
Wilson and Kiper argued that a rethink of the Brandenburg precedent was badly needed in an era of “an increase in political communication that emphasizes anger, threat, and fear.” With this in mind, they applied their matrix to the civil suit filed against the organizers of the infamous Unite the Right rally in Charlottesville, Virginia. They concluded that all ten factors were present.
Notably, several of the rally’s organizers—including Andrew Anglin and Michael Peinovich—were all major leaders in the white supremacist and neo-Nazi movements and hosted podcasts popular with white nationalists. The keynote speaker, Richard Spencer, projected an air of credibility with his urbane image of “three-piece suits, gold cufflinks, and Swiss watches.” One of the rally’s organizers, Jason Kessler, set up a Discord channel to help organize the march; it was rife with calls for violence and dehumanizing attacks on minorities—a tone echoed on social media channels as well. As most of us know, the marchers saw Jews as a threat to their very existence, as evidenced by one of the main chants at the rally, “Jews will not replace us!” Moreover, the rally took place only nine months after the contentious 2016 presidential election, and was organized by elements that are heavily polarized “by definition.”
All of this led Wilson and Kiper to conclude that local law enforcement could have anticipated that the advocacy of violence leading up to the rally would have led to imminent lawless action. They also concluded that “a systemic risk analysis” could have prevented dozens of counter-protesters from being injured. Above all, they argue, it would have prevented Heather Heyer from being murdered when James Alex Fields Jr. plowed his car into a group of people counterprotesting the Unite the Right rally.
Law enforcement would have been more than justified in intervening to protect Keffals and other Kiwi Farms targets. Moreover, it’s very likely that Simmons would not have had to worry about her son’s safety, and law enforcement would have had no excuse to avoid protecting Freeman and Moss from the pro-Trump hordes. Indeed, a case can be made that with this matrix, more could have been done to prevent the horror that unfolded on Jan. 6. Along lines similar to Wilson and Kiper’s analysis, Joshua Azriel and Jeff DeWitt of American University argued a year after the horror of Jan. 6 that prosecuting Trump for his now-infamous “fight like hell” speech on the Ellipse would establish “an updated standard of constitutional jurisprudence applicable to future speech-incitement cases.”
And all of this can be done without resorting to hate speech laws. While some may argue that such measures are necessary to prevent political violence, all too often, they can have the effect of muzzling speech. Rwanda is a stark example. In response to the heated rhetoric that led to the 1994 genocide of Tutsi and some Hutu (for instance, referring to Tutsi as “cockroaches”) the government of President Paul Kagame enacted laws banning “genocide ideology.” However, according to Human Rights Watch and Amnesty International, these laws are so vaguely worded and broadly interpreted that they are frequently used to legally gag opposition.
Along similar lines, a number of states have enacted laws making it prohibitively difficult to protest by enacting harsher penalties for riots. My state of North Carolina recently joined that list. The law defines a riot as any gathering of three or more people that either causes or poses an imminent threat of injury or damage to property. It allows felony charges for riots that cause $1,500 in property damage or result in death or serious injury. Civil liberties groups argue that the bill is overbroad and could infringe on the right to peacefully protest. Gov. Roy Cooper agreed, and vetoed a previous version in 2021. Nevertheless, the latest incarnation of this bill cleared the state house with enough support to override a veto. The Republicans hold a supermajority in the state Senate, setting the stage for a showdown if and when it clears that chamber.
Hate speech laws are not an answer to the current lack of guidance for the Brandenburg precedent. Neither are these recent laws tightening penalties for riots. But the current situation is equally unacceptable. We are dealing with an environment in which people are effectively prevented from taking part in the political process—or even being able to live their lives—because of the prospect that speaking out will result in violent retaliation. Fortunately, Wilson and Kiper’s matrix provides a very good model for combatting incendiary speech that is grounded in years of precedent, and can thus easily withstand constitutional muster. It would be the best way to update the concept of “imminent lawless action,” which dates from the era of typewriters, to the present era of social media.
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