Is Violent Speech a Right?

This spring, talk-show host G. Gordon Liddy, speaking on the radio to millions of people, explained how to shoot agents of the Bureau of Alcohol, Tobacco, and Firearms: "Head shots, head shots... Kill the sons of bitches." Later he said, "Shoot twice to the belly and if that does not work, shoot to the groin area."

On March 23 the full text of the Terrorist's Handbook was posted on the Internet, including instructions on how to make a bomb (the same bomb, as it happens, that was used in Oklahoma City). By the time of the Oklahoma bombing on April 19, three more people had posted bomb-making instructions, which could also be found on the Internet in the Anarchist's Cookbook. On the National Rifle Association's Internet "Bullet 'N' Board," someone calling himself "Warmaster" explained how to make bombs using baby-food jars. Warmaster wrote, "These simple, powerful bombs are not very well known, even though all the materials can be easily obtained by anyone (including minors)." After the Oklahoma bombing, an anonymous notice was posted to dozens of Usenet news groups, listing all the materials in the Oklahoma City bomb, explaining why the bomb allegedly did not fully explode, and exploring how to improve future bombs.

Fifty hate groups are reported to be communicating on the Internet, sometimes about conspiracies and (by now this will come as no surprise) formulas for making bombs. On shortwave radio, people talk about bizarre United Nations plots and urge that "the American people ought to go there bodily, rip down the United Nations building and kick those bastards right off our soil." A few months ago Rush Limbaugh, who does not advocate violence, said to his audience, "The second violent American revolution is just about, I got my fingers about a fourth of a inch apart, is just about that far away. Because these people are sick and tired of a bunch of bureaucrats in Washington driving into town and telling them what they can and can't do."

In the wake of the tragedy in Oklahoma City, a national debate has erupted about speech counseling violence or inciting hatred of public officials. Of course, we do not know whether such speech had any causal role in the Oklahoma City bombing. But new technologies have put the problem of incendiary speech into sharp relief. It is likely, perhaps inevitable, that hateful and violent messages carried over the airwaves and the Internet will someday, somewhere, be responsible for acts of violence. This is simply a statement of probability; it is not an excuse for violence. Is that probability grounds for restricting such speech? Would restrictions on speech advocating violence or showing how to engage in violent acts be acceptable under the First Amendment? Aside from legal restrictions, what measures are available to the nation's leaders and private citizens to discourage incendiary hate and promote the interests of mutual respect and civility?

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Recent events should not be a pretext for allowing the government to control political dissent, including extremist speech and legitimate hyperbole. But narrow restrictions on speech that expressly advocates illegal, murderous violence in messages to mass audiences probably should not be taken to offend the First Amendment.

For most of American history, the courts held that no one has a right to advocate violations of the law. They ruled that advocacy of crime is wholly outside of the First Amendment--akin to a criminal attempt and punishable as such. Indeed, many of the judges revered as the strongest champions of free speech believed that express advocacy of crime was punishable. Judge Learned Hand, in his great 1917 opinion in Masses v. United States, established himself as a true hero of free speech by saying that even dangerous dissident speech was generally protected against government regulation. But Hand himself conceded that government could regulate any speaker who would "counsel or advise a man" to commit an unlawful act.

In the same period the Supreme Court concluded that government could punish all speech, including advocacy of illegality, that had a "tendency" to encourage illegality. Justices Holmes and Brandeis, the dissenters from this pro-censorship conclusion, took a different approach, saying that speech could be subjected to regulation only if it was likely to produce imminent harm; thus they originated the famous "clear and present danger" test. But even Holmes and Brandeis suggested that the government could punish speakers who had the explicit intention of encouraging crime.

For many years thereafter, the Supreme Court tried to distinguish between speech that was meant as a contribution to democratic deliberation and speech that was designed to encourage illegality. The former was protected; the latter was not. In 1951 the Court concluded in Dennis v. United States that a danger need not be so "clear and present" if the ultimate harm was very grave.

The great break came in the Court's 1969 decision in Brandenburg v. Ohio. There the Court said the government could not take action against a member of the Ku Klux Klan, who said, among other things, "We're not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengence taken." The speaker did not explicitly advocate illegal acts or illegal violence. But in its decision, the Court announced a broad principle, ruling that the right to free speech does "not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

Offering extraordinarily broad protection to political dissent, the Court required the government to meet three different criteria to regulate speech. First, the speaker must promote not just any lawless action but "imminent" lawless action. Second, the imminent lawless action must be "likely" to occur. Third, the speaker must intend to produce imminent lawless action ("directed to inciting or producing imminent lawless action"). The Brandenburg test borrows something from Hand and something from Holmes and produces a standard even more protective of speech than either of theirs.


Applied straightforwardly, the Brandenburg test seems to protect most speech that can be heard on the airwaves or found on the Internet, and properly so. Remarks like those quoted from Rush Limbaugh unquestionably qualify for protection; such remarks are not likely to incite imminent lawless action, and in any case they are not "directed to" producing such action. They should also qualify as legitimate hyperbole, a category recognized in a 1969 decision allowing a war protester to say, "If they ever make me carry a rifle the first man I want to get in my sights is LBJ." Even Liddy's irresponsible statements might receive protection insofar as they could be viewed as unlikely to produce imminent illegality. A high degree of protection and breathing space makes a great deal of sense whenever the speech at issue is political protest, which lies at the core of the First Amendment.

But there is some ambiguity in the Brandenburg test, especially in the context of modern technologies. Suppose that an incendiary speech, expressly advocating illegal violence, is not likely to produce lawlessness in any particular listener or viewer. But of the millions of listeners, one or two, or ten, may well be provoked to act, and perhaps to imminent, illegal violence. Might government ban advocacy of criminal violence in mass communications when it is reasonable to think that one person, or a few, will take action? Brandenburg made a great deal of sense for the somewhat vague speech in question, which was made in a setting where relatively few people were in earshot. But the case offers unclear guidance on the express advocacy of criminal violence via the airwaves or the Internet.

When messages advocating murderous violence flow to large numbers of people, the calculus changes: Government probably should have the authority to stop speakers from expressly advocating the illegal use of force to kill people. There is little democratic value in protecting counsels of murder, and the ordinary Brandenburg requirements might be loosened where the risks are so great. Congress has made it a crime to threaten to assassinate the president, and the Court has cast no doubt on that restriction of speech. It would be a short step, not threatening legitimate public dissent, for the Federal Communications Commission to impose civil sanctions on those who expressly advocate illegal, violent acts aimed at killing people. Courts might well conclude that the government may use its power over the airwaves to ensure that this sort of advocacy does not occur.

Of course, there are serious problems in drawing the line between counsels of violence that should be subject to regulation and those that should not. I suggest that restrictions be limited to express advocacy of unlawful killing because it is the clearest case.

Authorizing the restriction of any speech, even counsels of violent crime, has risks. Government often overreacts to short-term events, and the Oklahoma City tragedy should not be the occasion for an attack on extremist political dissent. Vigorous, even hateful criticism of government is very much at the heart of the right to free speech. Indeed, advocacy of law violation can be an appropriate part of democratic debate. As the example of Martin Luther King, Jr., testifies, there is an honorable tradition of civil disobedience. We should sharply distinguish, however, King's form of nonviolent civil disobedience from counsels or acts of murder. The government should avoid regulating political opinions, including the advocacy of illegal acts. That principle need not, however, be interpreted to bar the government from restricting advocacy of unlawful killing on the mass media.


What else might be done? First, nothing that I have said suggests that government lacks the power to limit speech containing instructions on how to build weapons of mass destruction. The Branden burg test was designed to protect unpopular points of view from government controls; it does not protect the publication of bomb manuals. Instructions for building bombs are not a point of view, and if government wants to stop the mass dissemination of this material, it should be allowed to do so. A lower court so ruled in a 1979 case involving an article in the Progressive that described how to make a hydrogen bomb, and the court's argument is even stronger as applied to the speech on the Internet, where so many people can be reached so easily.

Second, the nation's leaders can do a good deal short of regulation. The president and other public officials should exercise their own rights of free speech to challenge hateful, incendiary speech. Although public officials could abuse these rights so as to chill legitimate protest, President Clinton's statements about hatred on the radio and the Internet were entirely on the mark. Public disapproval may ultimately have a salutary effect (as it recently did in the case of violent television shows), even without the force of law.

Third, private institutions, such as broadcasting stations, should think carefully about their own civic responsibilities. An owner of a station or a programming manager is under no constitutional obligation to air speakers who encourage illegal violence. Stations that deny airtime for such views do no harm to the First Amendment but on the contrary exercise their own rights, and in just the right way. In recent months, public and private concern about hate-mongering has encouraged some stations to cancel G. Gordon Liddy's show; this is not a threat to free speech but an exercise of civic duties. Similarly, private on-line networks, such as Prodigy and America Online, have not only a right but a moral obligation to discourage speech that expressly counsels illegal killing.

The advocacy of murder is an extreme version of a far more widespread social practice: treating political opponents, or large groups of people, as dehumanized objects of hatred and fear. Too often people who disagree are portrayed as if their political disagreement is all that they are--as if they are not real human beings who have hopes, fears, and life histories of their own. Too often the individuality of opponents is hidden behind political abstractions--"the government," "the bureaucrats," "the liberals," "the radical right," "the counterculture." The seeds of violence lie in these abstractions.

The communications media sometimes help promote violence by turning people into abstractions, but they can also help to reduce violence by telling the stories of individual people. By focusing the nation on the individuals who happened to be in a federal office building in April, the Oklahoma City tragedy may have helped break through the abstractions that enable government-hating extremists to commit unspeakable acts.


I think that violent speech absolutely is a right. While political speech may have been what was meant to be protected in the 1st Amendment, the wording of the 1st Amendment actually indicates that it protects a lot more. The text of the First Amendment as concerning speech and publishing information says specifically:
Congress shall make no law ... abridging the freedom of speech, or of the press.

It is very important to note that it makes ABSOLUTELY NO DISTINCTION of any kind of "dangerous" speech. Notice that laws that are considered common (and accepted) bans of speech today (yelling "fire" in a crowded theater, defamation/libel/slander, obscenity on public TV and radio, child pornography) are actually NOT specifically supported by the constitution. The 1st Amendment does NOT make ANY "wiggle room" for bans on speech in ANY conditions. Even child porn which is illegal and I believe SHOULD FOREVER REMAIN illegal, is technically a violation of the constitution! You probably are not aware of that. It is important for the congress to not try to create exceptions to the constitution in other laws (as they currently do), but rather go through the proper procedure of amending the constitution as specified in the constitution. I would have no problem with seeing an amendment to the constitution banning images of real children engaged in behavior that would commonly be considered pornographic (contains in addition to nudity; facial expressions, body poses, etc, that are commonly seen in adult material like Playboy magazine, so it is obviously a sexual portrayal of a child). This type of image in circulation is terribly offensive and humiliating to a person for the rest of their life, especially knowing that they nor the police probably will never be able to eliminate it entirely from the internet. Such speech is therefore harmful IN AND OF ITSELF, and does NOT deserve to be protected by the 1st Amendment, and I would like to see a new amendment put forth making this VERY CLEAR in conjunction with the already existing child porn laws, such that existing child porn laws actually have constitutional backing so that NOBODY could ever argue 1st Amendment protection of it (as one could potentially do presently, due to the 1st Amendment's lack of specifying forms of speech that are so bad as to deserve no protection).

Using child porn as a perfect example of what does NOT deserve 1st Amendment protection, let me continue to explain why violent speech DOES deserve 1st Amendment protection. Most importantly, the mere act of distributing violent speech does NOT in and of itself harm anyone. Bullying (specifically its verbal form, for this sake of discussion, not physical bullying) in school is actually worse speech because the mere act of saying offensive words can cause a person to be depressed possibly leading to their death through suicide. Bullying has a strong probability to lead to physical harm, and absolutely DOES instantly lead to emotional harm (possibly permanently). While violent speech does not instantly nor imminently cause harm, it only conveys ideas to a listener or viewer or reader who may or may not act on the information in the speech in a way that causes harm to someone.

There are a variety of forms of violent speech. Firstly this can be divided into how many people are listening.

If you talk to a friend it is just one person, but the fact you are directing violent speech to one person usually indicates you are planning to commit a crime with them, unless of course you are a chemistry tutor one-on-one tutoring them and part of their chemistry homework involved the chemistry of explosives, so even a one-on-one situation isn't a perfect indicator of violent intent, in itself.

If you talk on the radio, TV, internet, or write a book, you care communicating to anyone who listens to that station on the radio, watches your station on TV, views your website, or reads your book (and that can be MILLIONS of people). Even if you aren't attempting to instigate violence, it is likely someone out there who "has issues" will take your information and try to put it to use and hurt or kill someone. I'll discuss this later because it's an important point.

If you are a speaker at a gathering with maybe no more than 100 at a public meeting discussing a topic it is likely that you aren't plotting a crime with the whole group, so there's not "conspiracy to commit" going on, and it's also unlikely that in such a small group that there will be some wacko there who actually listens to you and decides to commit a crime.

Another way speech can be divided is by the intent of the speaker. Specific words and phrases are important here, as well as by the audience (is it targeted to people who are likely to commit a crime of the nature being discussed by the speaker). Here are some examples of speech that one can deduce intent from based on language used.

If you say:
"The president is terrible."
you are just expressing political views.

If you say:
"I think the president should be shot."
you are likely exaggerating to make a point, or at worst are advocating violence (which is still legitimate political speech) but not ordering violence to occur (a VERY IMPORTANT distinction). This is still perfectly protected free speech (regardless that some people would like to see it banned as "violent speech").

If you say at a public gathering:
"Hey you down there in the front row with the red shirt, I command you to kill the president."
then you are (or at least should be) considered in violation of the law, and there should be an amendment to the constitution that allows this to be an exception to the 1st Amendment. It should be up to 10 years in prison for issuing an order to commit a crime (or less time for ordering a lesser crime) even if the crime isn't committed by the person to whom you issued the order. If the crime IS committed (even if by someone else in the group who overheard your order, not the person you ordered to do it) it should be life in prison or execution if the crime was murder, and in general should be punished by whatever the the commission of that crime would have gotten the actual perpetrator of that crime, as if you had committed it yourself.

Key words that should indicate an order to commit a crime should be "command", "order", "demand", "insist". Also under this law should be threatening phrases such as "if you don't (insert name of crime to commit here) I will (insert name of penalty being threatened for not committing crime here)".

Now what about mass media (TV, radio, books, internet) I was talking about earlier? Should that be a separate category and get stricter regulation? I don't think so, despite the fact that with millions of people watching it's likely there will be someone (even if only one) who will be exposed to the information and go and commit the crime being discussed. Why shouldn't it be illegal to talk about such crime in detail in mass media? Because if you did that then the whole society would shut down (I don't think all of you realize just how much media would be affected by this kind of law). As it is, there are plenty of "copy cat" crimes because someone reads the newspaper or sees a TV story of a crime being committed (or even reads about it in fictional "murder mystery" books or watches it in fictional "crime drama" movies or TV shows), yet criminal charges have NEVER been pressed against any news agency for broadcasting information on a crime committed (even if a copycat crime later occurs that is likely the result of some crazy person watching the news), nor movie director nor TV drama director nor book author for writing fictional stories that have been copied and committed as real crimes (and yes that has happened in the past). If every output of the mass media was this heavily regulated you'd NEVER have entertaining movies or TV shows to watch or books to read because THEY would have to worry about going to jail if someone imitated what was in their story, and you'd NEVER know what was going on in the world because the news would be so censored because the news agencies would fear they would have to face criminal prosecution if there were ever any copycat crimes that could be linked to their reporting of an original crime.

In fact the Power Rangers is one of the most violent shows I've seen on TV. Some of the battle scenes in Power Rangers are even comparable in violence to some of the battle scenes in R rated movies like The Matrix and Terminator movies, only without blood, so as to make it "family friendly" material. Yet this show is aimed at very young children (specifically children 7 and older as indicated by the rating Y7). With that much violence aimed at young and impressionable children (and on the medium of TV which is viewed so widely, just like the Internet) isn't it HIGHLY LIKELY that some of them will take away the message "if I'm in a disagreement with someone, the best way to solve the disagreement is with violence"? Even though Power Rangers clearly has heroes fighting against evil aliens from space who are trying to invade earth, children might misinterpret this to in general think that fighting is a the right way to solve problems, up to and including using weapons. Even those who don't take away this message might take away the idea that it's "cool" to be able to perform all those dangerous stunts that are shown, and not realize that there are trained stunt performers who do that in the TV show. They might try these stunts out themselves or with their friends and accidentally injure (or even kill) themselves and/or their friends in the process. I believe this is a highly likely outcome for children as young as 7 watching Power Rangers

Yet it is perfectly LEGAL to show the Power Rangers on TV, so it should (by the same logic of the 1st Amendment that NOTHING should be banned) be MORE THAN OK I believe to in general post information online about how to commit a crime, as I feel that the negative repercussions from posting info on committing crime on the internet are FAR MORE LIMITED in terms of total number of people who will imitate what's discussed in this situation, than from showing Power Rangers on TV. This is because there are A LOT FEWER criminal minded adults in the world than there are naive children who will take away bad messages such as "violence is an ok way to solve problems" or thinking it's "cool" or fun to do dangerous stunts.

Does this mean it should be legal to post bomb making instructions (and other info that could be dangerous or even deadly if used improperly) on the internet (or other mass media like books that are widely read)? ABSOLUTELY YES. It should be ok as long as the person posting the information does not do so with the intent to cause a crime to occur (and intending to cause a crime to occur would obviously be the case if he/she posted the info on a terrorist website, or posted accompanying text actively attempts to recruit people to commit a specific crime). An example of what a person might say to indicate they were attempting to cause a crime to occur would be :
"Those who read this, please make this bomb and come down to the Washington DC Mall and plant it at near the Reflecting Pool, because I will be there too planting my bomb, and I want lots of people to die tomorrow, so make sure you set the timer for tomorrow at noon".
Now THAT kind of speech would be CLEARLY HAVING THE INTENT to produce a crime, and should be prosecutable. However anything short of that on a general website should NOT be prosecutable. What about websites or other mass media aimed at criminals? More on that in the next paragraph.

Now things change if you are no longer talking about a general website or TV or radio program or book. If you are talking about a specific website aimed at people of terrorist ideology (or other people with criminal agendas) as can be determined by the type of material common on that website (or of a book that can only be ordered through a catalog and in general that catalog is aimed at terrorists or other criminals as indicated by the wording in the catalog) then things change a bit. For example if you know of a website that is operated by a known terrorist group and you post bomb making instructions on that website then it is OBVIOUS you are attempting to assist a terrorist group in committing an act of terror by providing them with instructions on how to make a device that you hope they will use in committing their act of terror. The constitution should be amended to reflect this as an allowable exception to the 1st Amendment protection of free speech.

Other than that though there should be NO BANS ON SPEECH. Therefore I can count on the fingers of one hand the ONLY exceptions there should be to free speech. And regulating material in general mass media because it is likely that SOMEONE among the millions of people watching/listening/reading/viewing it will actually go and commit the act described, is DEFINITELY NOT ONE OF THE EXCEPTIONS that should be allowed. If it were allowed, then we would INSTANTLY live in a dictatorship, given the MASSIVE number of things (including things like news broadcasts that most people don't think of as dangerous to the public, even though technically they could be, given copycat crimes) that would be banned instantly under such law.

In summary the only things that should be banned are those in which the person producing the speech CLEARLY had the INTENT to cause a crime to take place (or material that is so heinous that it deserves to be destroyed forever, namely child pornography). To break that down for you these conditions are met when:

A person in a one on one situation or in a small crowd addresses someone and orders them to commit a crime.

A person on the internet or other mass media situation (regardless of the audience it is aimed at) issues a set of instructions very clearly specifying a crime they wish to happen and provides great detail on committing that exact crime (such as date and time and/or place it is supposed to occur) in such a manner that it is obvious they are trying to cause that crime to happen.

A person on the internet or other mass media provides nothing more than simple instructions on how to accomplish a crime but posts the information in a place that in general is intended to be a source of info for criminals (such as a book or website targeted at terrorists), so it is obvious that person is providing information that would be valuable to the commission of a specific type of crime to individuals who are highly likely to commit that type of crime and are therefore seeking information on how to commit that type of crime. In other words at this point is becomes obvious that you are attempting to provide criminals with information on how to commit the type of crime they are obviously wishing to commit, and therefore you are trying to cause a crime to be committed.

A person distributes real child pornography for any reason in any place by any means (though law enforcement officials on the job are exempt in a situation that they must "possess" the material in order to analyze it forensically to solve a case, or "distribute" it back to the police headquarters for putting in evidence storage or taken to the lab to be forensically analyzed).

In summary of that massive "wall o text", for violent speech to be illegal, it should have to be proved that the person INTENDED to cause a crime to occur as a result of the speech act they performed. A speech act should should NOT not be illegal merely by the likelihood that someone would do a criminal act as a result of hearing the information provided by the speech act. If this latter were the case then the news would have to not broadcast reports on crimes that occurred, out of fear that one of their listeners might commit a copycat crime. And this would be a MAJOR BLOW to the 1st Amendment. The law regarding this should be worded in such a way that the intent of the speaker to cause a crime to be committed ABSOLUTELY MUST BE PROVED in order to to prosecute the speaker for committing a crime of "violent speech".

And let me add that the reason the 1st Amendment was created is not specifically to allow speech that reflects what's commonly considered ok. Indeed speech that's considered ok is allowed in EVERY society. It has never needed protections. Instead, because the government sets the tone of what's ok and enforces it by law in such dictatorships, what's considered good or ok speech is the ONLY speech that is allowed. Indeed the only kind of speech that would ever be in question as to its legality, even in a dictatorship, is speech that would not go over very well with the government and in general that would be speech that that society considered bad such that the government chose to ban it. Therefore the true rationale behind a freedom of speech that allows all speech, is to make sure that the government knows that they CAN NOT ban even unpopular or bad speech, that therefore the individual is allowed under law to say things that the government doesn't like and even things that society as a whole doesn't like. It really is an amendment to protect unpopular speech and bad speech. Violent speech is one such form of speech, and for the government to ban such speech claiming "don't worry all non violent speech is still protected by the 1st Amendment" is the same as abolishing the 1st Amendment altogether, as normal speech would even be allowed in a dictatorship! It's no special thing to say that nonviolent speech is being protected. That's the same as having no special protections at all! For the government to ban "violent" speech IS the government turning into a dictatorship. Right now America is at a crossroads. There's a good path which is continued democracy, and a bad path which is nothing less than OUTRIGHT DICTATORSHIP. If the bad path is taken, then the 1st Amendment will be nothing more than a piece of paper with some writing on it.

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