Perry de Havilland wrote in this post that
all insulting behaviour (short of actual incitement to violence), blasphemy and ‘holocaust denial’ laws are an intolerable abridgement of freedom of expression and must be abolished, now!
Why is incitement to violence an exception? When a violent act is committed, why should a citizen capable of standing trial be able to claim that they were incited as some kind of mitigating circumstance? Is there not a legal expectation in nations respecting the rule of law that an adult capable of standing trial is a thinking, responsible individual? And thus, if said individual claims to have been ‘incited’ to violence, surely the point is that at some stage that person has decided to physically remove the rights of another. Grandma’s favourite scold – “if someone told you to jump off a cliff…” – applies in spades.
I cannot see how an ‘incitement to violence’ is any different to racist ‘hate speech’ – something that is censured but not censored by most supporters of liberal values. Surely a liberal believes that personal responsibility is central pillar of liberty. Criminalising incitement to violence further divorces personal responsibility from individuals, thus further justifying the existence of an overmighty State.
Incidentally, I am sure I am not the only one who would like to know further details of Perry’s run-in with David Irving.
yeah, if everyone thought as an individual yes, but thats not the case. Many people do actually think as a group and like to belong to the group.
Some people ‘would’ jump off a cliff if their cult leader told them to.
“Why is incitement to violence an exception?”
Because it allows us to strike at the head of the plotters instead of just the stupid foot soldiers.
If someone shouted “Suicide bomber!” in a crowded train station or an airport, surely they and they alone would be responsible for the stampede and trampling to death that would naturally follow? This is a difficult one. Maybe there should be an injunction against speech that incites accidental violence? (I agree that merely “incitement to violence” doesn’t really stand up, because the listener should be assumed to have the wit to decide for himself whether to commit violence.)
Yes, James Waterton, I too vote for full disclosure from Perry re his run-in with David Irving.
I would point out that holding an incitor responsible does not necessarily reduce the responsibility of the incitee. If two people cooperate in a murder, they are not each guilty of half a murder…
That aside, I am tempted to agree. At least, it’s not an easy question. Ivan’s comment yesterday is valid.
Practically, our priorities must be to protect the freedoms we still have, and to recover those recently lost. Not that that should prevent us from building a consistent theory of what freedoms we ought to have. Publically, I was at least accepting of the restriction on inciting violence, though with some hesitation.
If a person stands on a street corner and says “we need to lynch that (nigger/kike/wop/homo/honky) over there!” and the mob does indeed lynch them… if the person urging them to do ‘only’ incited them, I would say they are still a party to the crime in some measure. Where it gets difficult is in less clear cases where the link between say-and-do is involved… but that is the principle.
As for my altercation with Irving, it was not over his preposterous views but over him in effect calling a relative of mine a liar. I am quite sure Irving has no idea who I was. It was not a big deal and no bones were broken but I got chucked out by security as a result. It is probably not a good idea for me to elaborate in a way that makes it a matter of record.
“Inciting violence” is not a free-speech issue. It is morally equivalent to getting a contract out on someone and the assasin saying he’ll offer a “freebie”.
Leaving principle aside it is very apparent that incitement does actually result in death, damage and injury. So, this is a big deal.
Also, if you incite people to hate me, well, so what. I take it as a matter of pride that I am hated by some people. However if you incite people to shoot at me or throw rocks… The difference is quite material so they are by no means the same thing.
Dave,
“Some people ‘would’ jump off a cliff if their cult leader told them to.”
And if they used that as a defence against a charge of murder, it should be fairly clear to the court that such people represent a considerable danger to the public.
The issue is not then the cult leader’s specific instruction to murder, but perhaps more the brainwashing that preceded it.
Verity,
“If someone shouted “Suicide bomber!” in a crowded train station or an airport, surely they and they alone would be responsible for the stampede and trampling to death that would naturally follow?”
To a fairly large degree, yes: because each individual in the stampede is acting rationally to the shout. Should we ban such speech? No. We merely nail the shouter for the forseeable consequences of his actions. Breach of the Peace? Something like that? Dunno. Doesn’t feel like a “speech” issue to be honest.
Indeed, if the same shouter shouted the same shout in the same place, but at 2am when the platform was deserted, there would be no stampede and nothing to nail him for.
Perhaps?
The Pedant General – No, because the shouter of the incendiary (literally) words, “Suicide bomber” did so with mischief in mind. He intended to cause a stampede and chose probably the one shout that had a 100% chance of being effective. Thus, if deaths resulted from this malice, he should be charged with murder, for he murdered the dead as surely as if he had a suicide bomb himself.
This is the only kind of “incitement” I would punish. Using Perry’s example, If a person stands on a street corner and says “we need to lynch that (nigger/kike/wop/homo/honky) over there!” and the mob does indeed lynch them… if the person urging them to do ‘only’ incited them, I would say they are still a party to the crime in some measure. I don’t agree that the inciter would be party to any violence that followed because his adult hearers should bde presumed to have the wit to say, “Don’t be ridiculous! Leave him alone!”
As an individualist I see such a group as a coalition of individuals. If an individual has rendered his free will to the whim of the group, at some stage he has made a decision to do so, and could leave the group at any time. There may be penalties for doing so, but that’s not the point. At the end of the day, the law deals with individuals, as it should. Do you think “sure, we murdered those Pakis, but it wasn’t my fault, it was the group’s!” would stand up in court?
So the ends justify the means, then? How many liberties are we to lose on this altar?
I’d call that conspiring. Conspiring to commit violence against someone else should be a crime, and those that conspired to produce the outcome are accessories to that crime.
If there is a conspiracy – not incitement – then you’re right. However incitement – an individual or organisation suggesting that violence should be visited upon someone without making plans to carry out such violence – is not actually removing the person’s rights in any way if it ends there.
Yes, but you’re talking about degrees of severity. What if someone’s racist hate speech resulted in you being discriminated against? That too is materially different to merely being hated, though not as severe as being murdered. So shouldn’t we outlaw racist hate speech, too, because of its latent potential to harm your wellbeing? Using such logic, couldn’t one also argue that those Danish cartoons incited some Muslims to violence, thus publication of similar literature should be criminalised?
“What if someone’s racist hate speech resulted in you being discriminated against? That too is materially different to merely being hated, though not as severe as being murdered.”
Irrelevant surely? The key difference is that one is a direct incitement to use force, whereas the other (hate, discrimination etc) is not.
incite: to stir up or provoke into action
Back to James’s original point: “Why is incitement to violence an exception?”
It’s because it is a crime to incite someone to commit a crime.
It is purely insulting, unpleasant or rude to incite someone to be insulting, unpleasant or rude. [And, for the sake of this argument here, let us ignore the fact that blasphemy is still a crime in the UK (or I think it still is). Surely none of us believe that it should be.]
Best regards
“Should we ban such speech? No. We merely nail the shouter for the forseeable consequences of his actions.”
But is anyone here actually arguing for a ban on saying silly things like that? I don’t think so.
Nevertheless we are still talking about using the law to punish certain kinds of speech connected with a high probability of intended harm coming to others. I think such considerations as these are the rational limits to free speech.
by the law is still
If you abridge the right to free speech by saying that a person shouldn’t ‘incite violence’ by exercising said right then you create more problems than you solve.
For example, you can hardly claim that Jyllands-Posten delibarately incited Moslems to burn embassies down but the Moslems concerned would.
Start with free speech is inalienable and should remain unabridged. Then use some common sense. Idiots who shout ‘fire’ in a crowded theater should merely be done under existing public safety laws (or maybe mental health laws ..). People who shout fire in an empty theatre can just be ignored.
I endorse what Lusiphur wrote. Take out “incitement to hatred” and “incitement to violence” laws because we have seen that people who are minded to twist these laws through bigotry and absence of education (other than reciting the Koran from memory) and we cannot always trust the judiciary to interpret laws rationally.
So no exceptions. Free speech is an absolute right. And, as Lusiphur said, there are already laws that could be applied against nutjobs who shout “Fire” in a crowded theatre.
Perhaps there is a middle ground: you’re only inciting someone to violence if violence is committed because of your speech.
This way, you can have all the “behead infidels” signs you want, if nothing results directly. To put it in context, there is no material difference between speech that is hateful and speech that attempts to incite violence if nothing results.
Further, it should be a solid tie between the speech and violence. You can’t connect violent signs at a protest to events that happen weeks later.
I think rules like this should be on a case-by-case basis, which is why being a judge is hard at times.
The clearest way to understand free speech is to realize that it’s just a natural corollary to private property.
You can say whatever you want on your property, or in your newspaper, or on your blog. But you have no right to control what other people say on theirs.
If someone tries to “incite violence” on your property, it’s up to you to decide whether to kick him out. In a real free market, people “inciting violence” would likely become personae non grata throughout civilizied society. The judgement rests with each property owner individually.
Naturally, public property is more problematic. Which is yet another reason it should be abolished, or at least minimized.
More or less endorse what Ivan said. The police have a duty to maintain order and are thereby authorized to shut down certain violent or soon-to-be-violent demonstrations. Part of exercising this duty is identifying any sources of the prevailing mood and attacking them directly.
The measure of “incitement” should depend entirely upon the mood at the scene and never on the actual content of the speech. That is, shouting “behead the infidels” at said march in London should be perfectly legal – save in such cases where a crowd of people seems likely to actually immediately put such words into action. Since this never seemed likely at the march of 3 weeks ago, the sign carriers were (or should have been) within their rights to call for as many beheadings as they liked.
I think the law should also be quite clear on the matter that “having been incited” is NOT any kind of defense. People remain individuals and capable of individual choice and are resonsible for such choices no matter how “incited” they felt. It’s just nice to be able to call the guy doing the inciting an accomplice. His penalty should, in any case, be significantly milder than that meted out to those who did the action doing.
The difference between racist speech “inciting to discrimination” and inciting to violence is that discrimination (a) takes place later and (b) doesn’t violate anyone’s actual rights. You have a right not to be physically assaulted. There is no right to receive racially unbaised treatment.
I agree with Joshua.
And yesterday I was a recipient of racially biased treatment. My car died at the service station because I’d forgotten it won’t start if I have the air-conditioner blasting on full. Anyway, there is a kind of hole in the wall workshop a few yards away and the pump attendants pushed me over. I got out of the car and walked over to the shorts-and-singlet clad fellow who looked bad-tempered enough to be the boss and asked if there was someone who could help me, and he pretended he didn’t hear me at first, so I asked again, and he said, “No. We don’t help gringas here.”
So I turned to a couple of the mechanics and asked if they could get the car started and he shouted at them, “Don’t help her! She’s a gringa!” Ah, the warm, kumbayah glow of NAFTA! I think if I’d said, “But I’m not American”, he would probably have relented. But in the cause of solidarity with my American friends and America itself, I left him to his bigotry.
I happen to think discriminating against people on any grounds whatsoever is a right.
But I do not accept that being hated or discriminated against shoudl legitimatly be seen as criminal.
Nope, for the reasons already stated. Violence against me due to my views is objectively ‘a bad thing’, none of the other things are.
I agree with the main point. The whole incitement to violence and ‘hate speech’ depends of vague, changeable social conventions. I remember very very well the ‘hate speech’ put about by Michael Howard and Margaret Thatcher about the time of Clause 28. My school took the law to mean that homophobic bullying was allowed now, and protected by law. Now, such things are illegal. It just goes to show that there are no absolute definitions of ‘hate’ and ‘incitement’, and that to impose such things on society is fundamentally undemocratic and illiberal. Best to just let everyone say what the fuck they want and let private individuals and companies decide whether they want to engage with and support people who espouse ‘controversial’ viewpoints.
I agree with Perry. People should be able to discriminate against whoever they like. I didn’t take the garage man’s refusal to help me because I’m white personally. He has a perfect right to hate all gringoes and refuse to serve us if he chooses.
In principle (and in the ideals behind the founding of America) not only is “inciting violence” not an exception, it’s a large part of the purpose of freedom of speech.
In practice, governments don’t like it when people incite violence, as people are rather likely to be inciting violence against the government, so making it illegal is a high priority for government infringement on freedom of speech.
You’ll note that governments only object to inciting violence when the violence is committed by the peasantry. It’s perfectly okay to incite violence as long as the government is doing the violence, as far as the government is concerned, and they’ve been pretty effective at convincing people that it’s not even inciting to violence if it’s a government being incited.
Consider the quote where Perry de Haviland excepts incitement to violence, yet most of the people posting here (including Perry!) have been busily inciting the US and British governments to commit violence against Arabs for quite some time.
I am going to make two film quotes to illustrate my views on this.
A Matter of Life and Death/Stairway to Heaven-
Abraham Farland: It isn’t a matter of what a man thinks or says, but when, where and to whom he thinks and says it. A man with a flint and steel striking sparks over a wet blanket is one thing, but lighting it over a tinderbox is another!
MIB-
Jay: Why the big secret? People are smart, they can handle it.
Kay: A *person* is smart. People are dumb, panicky, dangerous animals and you know it.
No, not ‘Arabs’ but rather tyrants and those who serve them… I think shooting at tyrants is perfectly acceptable violence, just as shooting at muggers is perfectly acceptable violence. Do not try applying the norms of civil society when none exists… that is the mirror image of the socialist error of treating peacetime as morally the same as the same as wartime.
Ken Hagler, as Perry says, “No, not Arabs…”.
I would point out that we are not fighting Christian Arabs. We are fighting terrorism, and this is perpetrated by Muslims, whether Arab, Pakistani, Bangladeshi, Berber, African Negro, Filippino, Thai … you name it … where there are many Muslims, there is warfare, kidnapping, torture, rape, beheading, stoning, hanging and all of the foregoing in many combinations.
The key word is not Arab. The key word is Muslim.
It is important to not confuse ‘advocacy’ with ‘incitement’. I suspect any and all advocacy should be protected. But the root of the word ‘incite'(Link) goes back to ‘put in motion’.
Incitement is different than advocacy because it presupposes means and opportunity are both present. There must be a reasonable expectation of the action occurring in direct response to the words.
It can also help to think of conspiracy as being between co-planners and incitement being between leaders and followers. Incitement is conspiracy when some of the co-conspirators are too dumb (or drunk or angry or confused, etc) to co-plan. Incitement is possible with a mentally impaired person who might actually be innocent by virtue of ignorance of the consequences.
Joshua wrote: ‘I think the law should also be quite clear on the matter that “having been incited” is NOT any kind of defense.’
That is, as I understand it, pretty much the law in the UK.
However, that says nothing about the illegality, or otherwise, of the act of incitement.
Concerning the more subtle difference in concept, between “incitement to violence” and “racial hate speech”, incitement to hate is not a crime. This is because hating, even racial hating, is not a crime: it is a thought. However, incitement to racial discrimination either is, or should be, a crime.
Now, it may well be that “incitement to racial discrimination” does not feature that often in the criminal courts. On this, I have several thoughts: racial discrimination is, most often and in the view of most people, a lesser crime than violence against the person (though extreme cases may be exceptions); demonstration of clear evidence of “incitement to racially discriminate” may well be more difficult; finally, what is actually and subtly “incitement to racial discrimination” might well be prosecuted as actual racial discrimination.
Therefore, and repeating myself by way of question, is not the primary issue in law against incitement, that the act incited should itself be criminal for the incitement to be criminal?
Best regards
Legally speaking, absolutely.
Absolutely NOT. Verity’s example is relevant. The racists running the station didn’t want to help her for racist reasons. Their property, their livelihoods, their right. From where I stand, all they did was cheat themselves out of some $$. Insofar as you own a business, you should be free to hire, fire, serve and refuse servie to whomever you like for whatever reason you like. The only place where this principle would not apply would be in government buildings. I think we can all agree that the government should not practice racial discrimination. But that is still a matter of policy and not rights.
(The above example of the government is meant with regard to hiring practices etc. – naturally the law should be enforced equally as a matter of individual right.)
Joshua – Absolutely! I didn’t try to argue with the head mechanic honcho in this workshop because I accepted immediately that it was his right to refuse me service on his property.
When I walked over to two other mechanics sitting doing nothing, to ask for help, and the head honcho shouted, “Don’t help her! She’s a gringa!” my only thought was, ‘Now what am I going to do?’ It never crossed my mind that I had “a right” to help on his property just because he is a mechanic.
He has a right to his opinions and prejudices, as we all do. He thought I am American. He doesn’t like Americans and refuses to serve them. That is his absolute right on his own premises.
Verity,
Yes, but why is Islam the way it too often is? The burqa is a form of 7th cnetury Arab tribal dress. All the Koran says is dress modestly. The idea of ghazi (“raids” approximately) by mujahadeen is based upon the common Arab practise at the time of raiding camel caravans.
This is not just a linguistic curiosity because the Koran, being the exact word of God, and God apparently speaks classical arabic to the angels, shouldn’t be translated a large portion of the Islamic world is stuck with a C7th Arab mentality because they don’t have the ability to interpret their own faith anymore than I could read an Aramaic Gospel. That’s not rascist against Arabs, I would not fancy living in a Europe with a C7th European mentality either.
I’m a Nottigham graduate. Nottingham had (still has) a very large number of muslim Malaysian students. Educated Malaysian muslims are a very different set of people from the (in)famous “Arab Street”. The girls wear T-shirts and jeans and mix with boys (including non-muslims) and want to become accountants.
I very much doubt they’ve been burning Lurpack outside the Trent Building recently.
Well, Nik M – Get ready for some disillusionment.
You write: “the Islamic world is stuck with a C7th Arab mentality because they don’t have the ability to interpret their own faith anymore than I could read an Aramaic Gospel. That’s not rascist against Arabs.”
No, they can’t interpret their own faith because it’s the word of their allah. Direct. Unchangeable. He dictated it. Christianity and Judaism had prophets and disciples. Islam has the big guy himself dictating his personal Weltanschuunang, so it’s not open to interpretation. It just is. God said it to a desert people who never had a thought of their own thenceforth.
All of physics came out of India and went through the Arab transit lounge on their way to the enlightened West, where they have been employed to great effect for 1500 years.
You say you wouldn’t “fancy living in a Europe with a C7th European mentality either”. Seventh Century “Europe” – meaning, I assume, also Britain, which is not Europe – was Christian. Why not say so? And it was this enquiring ‘mentality’ that led to space travel, microwaves and fuel injection. Seventh Century Islam has led to … Seventh Century Islam!
Yes, as you say, Malaysian “educated Muslims” – and I would add, “uneducated” – meaning not tertiary educated, but still with good secondary reading and figuring skills – Muslims like taxi drivers – are a different kettle of fish. Not for long. Since Mahathir went, there is a move to the imposition of shariah law. Too bad for the 40% immigrant (wealth creating) Chinese and Indian population.
Verity,
Much though you may think it, I’m not an Islamic apologist. I’m not a Christian apologist either and the fact that C7th Europe was Christian did not make it a nice place. They called it the “Dark Ages” for a reason. In particular, as in some strains of pig-ignorant muslim thought (which runs from Mohammed to Bin Laden), women were treated like property in pre-enlightenment Europe as well.
Britain isn’t in Europe? Have you looked at a map recently. You know, continental shelves and all. Whether we ought to be a member of the EU has nothing to do with the brute facts of geography.
All physics didn’t come out of India (!), A lot did, but a lot came out of a very wide variety of places. For instance, I suspect Newton had something to do with it.
You wanna know why Europe ascended? Here’s a good guess (and not one of mine). Europeans invented spectacles in about C13th. This meant skilled writers/craftsmen/thinkers were not over the hill (frequently – given the human condition wrt eyesight) by 40. This was a uniquely European invention for a long time.
1300 years is a hell of a long time in most people’s books. So don’t go on about “space travel, microwaves and fuel injection.” Nobody in medieval Europe (or elsewhere) could even conceive of such ideas. You wanna celebrate what Europe gave to the planet, fine. I’m all with you on that. Just let’s reel back a bit and mention Bach, Newton and movable type first.
It’s late and this sounds angrier than it should. You’d probably be amazed at how much I almost agree with you. I would like to continue the “origins of physics” debate later. It’s a subject very close to my MSc astrophysics heart. I’m curious. I have never heard an “all from India” argument other than that guy on Goodness Gracious Me
And it’s “Nick” , not “Nik”. I bloody well hate that.
“You’d probably be amazed at how much I almost agree with you”
Nope. It would take a lot more than you to amaze me.
What Midwesterner said.
As far as I am aware incitement to violence laws are supposed to criminalise the person who intentionally calls for such and such act of violence, knowing it will almost certainly happen. The people who actually commit the violence can be prosecuted under different laws.
What TimC said too – “A *person* is smart. People are dumb, panicky, dangerous animals and you know it.” But surely there must be a thousand and one qualifications to add to such a view! David Irving for example, was not a smart person just as the Austrian jury was not smart in jailing him for three years. Incidentally, I thought a comment made by Joshua on that earlier thread to the effect that the Austrians seem to have learned nothing from the Holocaust was by far and away the best comment on that thread.
As expected, Samizdataers have compiled many interesting opinions above.
On the one hand there are the purists while onthe other there are those in favour of limitations. The problem as always is where to draw the line.
Unfortunately, none of the above gets us any closer to the finding the right answer — which is not surprising given that people have been looking for that answer for many centuries, at the very least without much success.
And I certainly can’t offer one either, beyond holding that certain acts should definitely not be prohibited, i.e. reprehensible “historians” being locked up for disagreeing as to what happened 60+ years ago, or dolts like Prince “I love fidgeting with my cufflings” Charles preventing newspapers from printing whatever they like.
Let the newspapers print whatever the hell they want to and deal with the consequences, i.e. sue them for all their worth, later.
As for the crowded cinema one, that is a tough one…
One more thing we may be able to agree on:
All forms of speech and writing that are capable of being verified before being acted upon cannot be abdriged.
i.e. If David Irving says something in a lecture or if I write something on a blog or wherever, people have the option of verifying it, before they go and act on that “information”.
And I ackonowledge this definiton does include Muftis who tell their RoP adhrerent to go and chop people’s heads off. If they want to say that, fine.
But the definition does not include the “Shouting fire in a crowded cinema” scenario since people hearing that do not have the opportunity to verify whether there really is a fire and will simply run.
I think that last one remains the tough one here. Any suggestions?
Easy.
If there is, in fact, a fire, there should be no legal consequences for saying such a thing- truth is a valid defense.
If there is not a fire, the speaker should be held accountable for any injury or property damage resulting from the actions taken by people trying to escape from the (nonexistent) fire.
What the individuals fleeing the (nonexistent) fire may be accountable for is another matter.
Regarding the “incitement” thing:
IMHO, it doesn’t matter that “incitement” does not provide perpetrators of crimes a defence in law. Just by invoking the term “incitement”, one is already implying a moral defence of sorts and that is just plain wrong, there is no defence, neither moral nor otherwise.
Sure there are wackos out there who’d jump off a cliff if their mufti told them to do so and obviously that is not a good thing, but that cannot deflect from the fact that it is they themselves who do the jumping.
Now if only more muftis told their adherents to jump off cliffs, instead of blowing up trains…
PS Sorry for breaking the 3 posts in a row rule, or was it 5?
Spectacles
Paper money
Accurate timekeeping
No Eunuchs.
Makes me wonder if there was not more to the phrase “spectacles, testicles, wallet and watch”…
@ rosignol
What if the guy who shouted fire has no $$$?
What if people die in the stampede?
/(I have now put on my reactionary leftist hat)
I wish more Muftis would tell their flocks to jump off cliffs.
In fact I wish all the Muftis would tell all their flocks to jump off cliffs.
What if the guy who shouted fire has no $$$?
Mm. Pretty much everyone in a modern society has something of value. If not, I wouldn’t have a problem with imposing a fine equal to the cost of repairing the damage, and garnishing future earnings until it’s repaid.
The bottom line is that people should be responsible for the consequences of their actions. Being poor, ignorant, or just plain stupid is not an excuse.
What if people die in the stampede?
Charge them with manslaughter if it cannot be proven that they went to the theater intending to cause a stampede, murder if it can.
That’s a sound point, and one I accept. The discrimination example was not a good one – unless we’re talking about discrimination on public property, that is. However, what concerns me is that your argument is essentially one of degrees. This logic can be extended to incitement of anything that removes your rights – down to the most trivial transgressions. I feel that, in the current climate, incitement to violence laws are (were) the thin end of the wedge. We’re far better off with the tried and true liberal traditions of personal responsibility and reactive laws that concentrate on the deed itself.
Just how many times do can anyone site, in the US at least, when anyone was prosecuted for incitement to violence?
I believe historically these laws were used against Communists who were trying to get workers to actually attack, property. Thus it was determined that there was a constitutional right to advocate violent revolution but not the right to actually lead a mob in attempting this. In the Vietnam era this all became moot, because the leaders who advocated violence were also throwing stuff at the cops.
Dave2-
Partly right – the laws against incitement were invented to stop anarchists and commies from sparking a revolution. However, the modern interpretation (roughly the same as the general conclusion of this thread – that you can say anything you want, even call for the violent overthrow of the government – provided you don’t say it to anyone who seems to you likely to go out and immediately do it only because you said so) actually does come from an anti-Vietnman protest. The relevant SCOTUS ruling is Brandenburg v. Ohio. If you’re generally interested, there’s a good list of First Amendment caselaw here.
Apologies – the post above should obviously read “from the Vietnam era” rather than “from an anti-Vietnam protest.”
I have a cousin who had a high and difficult to treat fever for a long time when he was one year old. He was brain damaged and is profoundly mentally disabled and extremely hyperactive. A very difficult combination. He is usually controllable with drugs and close continuous supervision. This guy probably can’t work a water faucet and understanding consequences is not possible. It is important that we have a crime that applies to someone if they goaded him into doing something unlawful and violent. Incitement is that crime.
To extend the case into slightly less obvious cases – A drunk routinely staggers his way home from a bar each night. Feeling his way along the wall, he makes it peacefully to his apartment every day. Now, one night, some kids take advantage of his state by talking him into breaking windows. He is probably guilty of no more than contributory negligence and public drunkenness if there is such a law. Those kids are guilty of something, or not?
@ Midwesterner
The 2 examples you mention happen to fall under the “capacity” clause in common law, i.e. no capacity to enter into legal relations.
The types we are focusing on are supposedly grown-up RoP adherents.
/(On second thought, it may be time to expand that common law definition…)
We cannot legislate and over-manage for every single human being on the face of the earth, and I doubt that someone who can’t turn on a tap is likely to be able to commit great violence. I’m sure there are already plenty of laws on the books that cover incitement of the feeble-minded.
hm, I know our legal advisors who approved our ‘waivers of liability’ tell us that to hold up in court we have to be extremely explicit.
I wonder, and you may know, does this generally apply in criminal prosecutions as well? Does it help to have a clear cut case to show the jury? It seems likely to me that ‘incitement’ is redundant to both certain cases of conspiracy and the ‘capacity’ clause you refer to, but may still be useful.
Also, do you speak of UK or US law? Just curious.
Verity, he is older than me. We were taught as children to be very careful around him, for example, never to walk down the stairs in front of him. Not that he might be malicious, he’s just well, hyperactive and brain damaged. He tended to be physical when frustrated. Which is a lot of the time, hense the drugs.
I did notice you used the word ‘incitement’ of the feeble minded. Precisely. This is why I’ve been pounding the difference between ‘incitement’ and ‘advocacy’.
I agree it should not, but that was not the issue at hand… it was whether or not the guy going the inciting (rather than whoever is incited) is engadged in something that should be regarded as criminal.
One of the most specious arguments trotted out at this juncture is that there are limits to free speech and that shouting “fire” in a crowded theatre is an example of a practical and necessary limitation of free speech. First, shouting “fire” in a crowded theatre is dangerous only if the society consists of panic-striken idiots, as someone remarked. Second, if there is a fire in the theatre, that is precisely what one should shout. Finally in the absense of a fire, if shouting “fire” leads to panic and harm, the correct response is not to outlaw free speech, or to argue for limiting free speech, but to punish according to the laws of the land for false speech. Blurring the distinction between false speech and free speech does not get us too far.
Shouting “fire” any time the mood strikes you in a crowded theatre is no more an expression free speech than defecating in the conference room is an expression of the freedom to use the toilet.
{from The Freedom to be Offended. }
hm, I just realized, your reference to the ‘capacity’ clause is in reference to the perpetrator of the act, not the instigator. How does common law address the instigator in those situtations?
“Finally in the absense of a fire, if shouting “fire” leads to panic and harm, the correct response is not to outlaw free speech, or to argue for limiting free speech, but to punish according to the laws of the land for false speech.”
Do correct me if I’m mistaken, but I don’t think anyone on this thread was arguing for the outlawing of free speech.
The nexus of issues here is:
(a) current legal limits to saying whatever you want – and as has been pointed out already, these are not necessarily laws explicitly about free speech;
(b) the purpose and moral status of some kind of ‘incitement to violence’ law – to apply to people who call for an act of violence as distinct from the people who actually perpetrate said act.
“Shouting “fire” any time the mood strikes you in a crowded theatre is no more an expression [of] free speech than defecating in the conference room is an expression of the freedom to use the toilet.”
If you have written a philosophy of toilet use and would like to remark on certain similarities it may have to 1st Amendment issues then please do us all a favour and make sure you flush afterwards.
Midwesterner,
The “capacity” issue applies wholly to civil law but only partly to criminal law.
Obviously, in civil law, the “instigator”, i.e. the car salesman who sells a mentally disabled person a car, incurs the “penalty” of having the contract voided, i.e. the car is not sold.
In criminal law there are lots and lots of shades of grey, most of which I do not understand and those that I do understand, I do not agree with.
So whether or not or to what extent you are culpable when you destroy public property while drunk depends on lots of factors, not least the judge. IMHO, the correct legal way of dealing with this is starting the chain of causation when the guy had his first drink, and hence, he is 100% responsible for everything that he does or does not do thereafter.
As for the person who talks a drunk into doing bad things, if you follow the causation argument I mention above, it will be the drunk’s fault. And although that might appear harsh, I think that is the only intellectually coherent way of resolving this.
To be sure, the instigator is morally responsible, but that is something our courts should not be the judges of.
I believe the American “Declaration of Independence” fits in with the “incitement to violence” definition being brandied about here. Unfortunately, the authorities were unable to bring the perpetrators to trial in that case.
Interestingly enough, it actually doesn’t at all. We have said that speech is only ever incitement to violence if it immediately eggs on violence that would have potentially occurred anyway – keyword being “immediately.” Anything that allows people rational reflection is not incitement as we have defined it here – which pretty much exempts any written documents. I suppose reading the declaration to a crowd that seemed likely to react immediately would count as “incitement,” but the document itself certainly would not. The document itself would be protected free speech – at least, under the system I have advocated, and the system that is the current law of the land in the US (see the Brandenburg v. Ohio ruling).
Under the prevailing norms of the time, however, it very definitely was seditious speech. But then, there wasn’t really much support for free speech as an absolute right in those days, certainly not from prevailing governments…
hm, thanks. The issue on culpability is one I’m not quite so sure off.
Yes, the drunk absolutely should be held accountable for the consequences of his actions. To keep the question simple, assume he drank voluntarily .
But imagine a drunk trying to find his car in a parking lot. He is unable to find it. Somebody helps him find it, knowing the guy’s loaded to the gills, and even helps him start it ’cause the guy’s unable to by himself.
In your view, is that ‘good samaritan’ also accountable in any degree at all for the very predictable consequences?
I’m asking now of intellectual coherence rather than actual practice. You’ve introduced a shade of doubt into my opinion.
I should add, if the court found malacious intent by the ‘good samaritan’, would that make a difference?
Midwesterner,
Those are tough questions, indeed.
I think causation is always the best test of these things. And one expression of causation is: Did whatever happened happen due to my interjection?
Personally, I take a very narrow view of that, i.e. if I say something and the drunk goes and does it, well, who’s to say the drunk wouldn’t have done it anyway.
However, if I physically help a drunk to unlock and start his car, that obviously goes beyond speech and it tends to break the strict chain of causation involving only the drunk, i.e. if I hadnt helped him he would have never been able to unlock and start his car.
If I merely told the drunk where his car was, I’d tend to revert back to my strict view, i.e. my interjection was not strong enough to break the chain of causation.
In any case, your example is very similar to the EUropean “good samaritan” law BS, i.e. the one they tried to prosecute the Diana photographers with. In other words, contitental EUropeans MUST help people who are apparently in distress.
That poses ALL sorts of problems to an independent minded person like myself, i.e. what if the person is faking, what if I try and help but mess it up and get sued as a result, what if I just couldn’t give a damn about the guy in the car wreck, what if I thought it best to call the ambulance and not interject myself, what if I get injured (or die) while trying to help?
All these questions are valid and yet, in continental EUrope they do not provide a defence. The state COMPELS you to “help”.
So, to draw the connection to what you said, just as some states compel you to “help”, they might also compel you not to “help” when drunks etc are involved. In reality, there is no difference. Ultimately, this is a moral choice to be made by each and every one of us when faced with this type of situation. And the state ought to have nothing to do with it.
hm, Thanks. Those parameters are useful. Particularly with the drunk who may have found his car without your telling him (causation not proven) but would not have driven without physical assistance (causation).
Interesting on the ‘good samaritan’ laws. Here in Wisconsin we have a law that is called the ‘good samaritan’ law. It’s intent is the same as the European ones, namely get people to help people. But it’s method is entirely different. Wisconsin’s law is that if you help someone, are not a professional helper (ie paramedic) and something goes wrong, you can not be sued. For example, there is an injured person in a crashed car. Gasoline every where. You pull the person out of the car to a safe distance but compound a spinal cord injury in the process. The car does not burn. In many states, you would be sued. In Wisconsin, you cannot be.
We also have a law that any one on your property that is a guest (not paying or doing business with you at all) and they are injured accidently, you can’t be sued. This applies to tresspassers, hunters etc with permission, birdwatchers, anyone who is not helping you make any money or material gain. In those cases it is assumed you are a business and responsible to provide a safe place for your customers.
Thanks for the useful thoughts.
BTW, is your legal reference/experience to UK or US?