Public officials like Attorney General James claim to be seeking ways to reduce the incidence of unspeakably tragic mass shootings in this country. But they must be careful not to sacrifice Americans’ civil liberties in the process. As ACLU President Anthony Romero said in the wake of 9/11, “Pursuing security at the expense of freedom is a dangerous and self-defeating proposition for a democracy.”
In the case of the Attorney General’s recommendations, it is far from clear that the illiberal policies proposed will purchase any security at all. They rest on the deeply unconvincing premise that the law can deter a mass killer from filming their murderous attack when the law is not enough to deter the attack itself.
A slew of unconstitutional proposals
The attorney general’s report makes a series of recommendations that, if enacted, will threaten the First Amendment rights of internet users and platforms. The report recommends:
Criminalizing the creation of videos or images of a homicide by the person committing it, or by others acting “in concert” with the killer.
Imposing civil penalties on individuals who distribute or transmit such content and on platforms that fail to take “reasonable steps to prevent unlawful violent criminal content (and solicitation and incitement thereof) from appearing on the platform.”
Reforming Section 230 of the Communications Decency Act to remove platforms’ immunity from liability for user-generated content if they fail to take these “reasonable steps.”
Defining “reasonable steps” to include restrictions on livestreaming, including broadcast delays and limiting algorithmic promotion for livestreams by users who are unverified, have few followers, or fail to meet other “trust factors.”
The report attempts — and fails — to justify the constitutionality of these restrictions using two primary rationales.
Broadening incitement and obscenity
Broadly speaking, the First Amendment significantly limits the government’s power to regulate, burden, or prohibit speech unless it falls into an unprotected category such as “true threats,” “child pornography,” or “perjury” — content-based restrictions outside of these categories are subject to, and rarely survive, a strict scrutiny analysis. To justify its proposed speech regulations, New York’s report attempts to stretch two of these unprotected categories — “incitement” and “obscenity” — beyond their strict legal definitions.
Referring to videos of homicide, like that which was live-streamed by the Buffalo shooter, the report claims: “Such videos are an extension of the original criminal act and serve to incite or solicit additional criminal acts. In addition, these videos are obscene on their face.”
As legal analysis, both of these contentions miss the mark.
While “incitement” and “obscenity,” properly defined, are not protected by the First Amendment, those exceptions capture a far narrower range of speech than the report suggests.
Incitement
“Incitement” is shorthand for the category of unprotected speech the Supreme Court described in Brandenburg v. Ohio, which held that speech provoking unlawful activity loses First Amendment protection only if it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Notably, courts, including the Supreme Court in Brandenburg and Hess v. Indiana, have rejected the idea that general advocacy for violence at some unspecified future time falls outside the First Amendment’s protection.
Nevertheless, the report claims, “Even a short video of a mass shooting can be used to incite others to engage in copycat crimes and serve the criminal goals of the perpetrator.” But even granting that such a video is intended to incite others to commit a copycat mass shooting, it doesn’t meet the imminence requirement of the incitement standard, as it is extremely unlikely anyone would plan and execute a similar crime immediately after witnessing a mass shooting. Generally speaking, these videos and their accompanying manifestos are not intended to lead to immediate action, but to urge others to begin thinking about doing the same. In this sense, the report’s authors may mean “incite” in a colloquial — rather than legal — sense, akin to “inspire.” But inspiring crime doesn’t render speech unprotected.
Our courts were right to set the bar for incitement so high. The First Amendment protects an enormous amount of political advocacy in all political quarters. It is untenable to hold a speaker legally responsible for the criminal actions of others who might have been inspired by the speaker’s words. This unjust rationale has been used to justify the prosecution of organizers of peaceful protests for the actions of a small number of violent participants. (See: NAACP v. Claiborne Hardware, the Chicago Seven, and, for a more recent civil case, Doe v. Mckesson.)
Nor should speakers face punishment based on a prediction that their public expression will inspire others to commit violent or unlawful acts at some point in the future. A standard based on such a tenuous and speculative connection between speech and action would inevitably invite abuse by those who seek to silence their political opponents. Rev. Dr. Martin Luther King, Jr.’s calls for nonviolent resistance prompted accusations that he was inciting violence, leading the FBI, which infamously surveilled King, to call him “the most dangerous Negro of the future in this Nation.”
Our national political conversation is filled with impassioned speech on polarizing, high-stakes issues like abortion, policing, gun control, immigration, and climate change. Empowering the government to crack down on speech that might inspire someone, somewhere, at some time to commit violence would be calamitous for free expression, and the government would no doubt repurpose that authority to target disfavored views. As writer Kevin Drum put it, “We can’t allow the limits of our political spirit to be routinely dictated by the worst imaginable consequences.”
Even advocacy that intentionally urges people to break the law merits protection. In Hess, an anti-war protestor was convicted for saying, “We’ll take the fucking street later,” before the Supreme Court overturned his conviction because his speech “amounted to nothing more than advocacy of illegal action at some indefinite future time.” Encouragement of civil disobedience has had a central role in the evolution of the First Amendment jurisprudence — the incitement standard in Brandenburg replaced the looser “clear and present danger” test announced in Schenck v. United States, a case that upheld a conviction under the Espionage Act for encouraging men to dodge the World War I draft.
Various political philosophies advocate lawbreaking to institute new political systems, including communism, various schools of anarchism, and strains of monarchism. In fact, our First Amendment was written and ratified by men who advocated for overturning a standing government — and did so. Proscribing the general advocacy of lawbreaking would be untenable, ahistorical, and arguably un-American.
As the Supreme Court has recognized, speech “may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” Of course, people are free to criticize inflammatory or revolutionary rhetoric and its potential consequences, but the First Amendment properly restrains the government from extinguishing speech it considers too fiery.
Obscenity
The report’s claim that images or video of a homicide are “obscene on their face” is similarly unsupported by legal precedent. As a threshold matter, the Supreme Court in Miller v. California made clear that for something to be legally obscene, it must be sexual in nature.
Graphic violence is not what the obscenity exception contemplates. As the Supreme Court bluntly put it in striking down a law barring the sale of certain violent video games to minors, “speech about violence is not obscene.”
None of the attorney general’s proposed restrictions on the creation or dissemination of images and videos can be justified under the incitement or obscenity exceptions to the First Amendment. And, as described below, such restrictions will have the unfortunate effect of restricting significant amounts of valuable speech.
From questionably constitutional to blatantly unconstitutional
The report recommends establishing a criminal penalty to punish the creation of videos or images of a homicide by the person committing it, or by others acting “in concert” with the killer. (Notably, the report recommends that those drafting the law be careful not to penalize bystanders or police with body cameras.)
First and foremost, this penalty seems extraordinarily unlikely to deter a killer from filming or photographing a murder and trying to disseminate it. If the law against murder won’t deter the killer from killing, why would a law deter them from filming that murder, especially when they often don’t plan on surviving their crime? Legally, it’s at-best unclear whether the government can impose criminal liability for a perpetrator’s act of filming his crime, as distinct from their commission of the crime itself. The act of filming a crime is generally a protected exercise of First Amendment rights, and the report’s authors do not provide a persuasive justification for why it would be constitutional to prohibit filming in this circumstance.
The report shifts from recommending questionably constitutional speech-related penalties for the shooter to certainly unconstitutional civil penalties on people who simply share a video of a homicide. Neither the person who shares the video nor the online platform that carries it can be liable for those acts. Again, speech does not lose First Amendment protection merely because it depicts violence.
Troublingly, the report’s authors apparently fail to see or care about why someone might share such images besides trying to glorify a killer or encourage violence. Some of these other purposes are squarely in the public interest — for example, to highlight police or policy failures during the shooting, to engage in the academic study of violence or murder, or to train police and members of the public in how to respond to such situations.
Images of violence and death have carried profound social and political significance: Think of the video of George Floyd’s murder, the Zapruder film, video of the 9/11 attacks, the photo of Emmett Till’s dead body, Kim Phuc Phan Thi (“Napalm Girl”), and various photos and videos of war crimes. These images shock the conscience and may invoke feelings of sympathy or disgust that can be extremely powerful tools when advocating for political changes intended to stop such acts in the future. And that holds true whether the image was captured by the perpetrator or a bystander.
The report’s authors, in arguing those uninvolved in the underlying crime should face legal penalties for video distribution, rely on court decisions involving child sexual abuse material:
The distribution of CSAM material has been upheld as speech integral to illegal conduct — without a market for CSAM material, there would be no motivation to create such material.
But the operative logic of child pornography jurisprudence falls apart when you substitute one situation for the other:
The distribution of [videos of murder] has been upheld as speech integral to illegal conduct — without a market for [videos of murder], there would be no motivation to [make videos of murder].
There is no evidence that prohibiting distribution of videos of murder would deter those who make the videos — who, again, may not plan to survive — from murdering in the first place. Nor is there any reason to think they would be deterred from filming the crime should they possess the knowledge that it will be illegal for others to share. Mass murderers are not known for their regard for others’ well-being.
As UCLA Law professor and First Amendment scholar Eugene Volokh points out:
Some of the mass killers may be motivated by the desire for fame, but that will generally come entirely apart from the images of the killings themselves (as we’ve often seen with regard to [past] mass killings). It’s hard to imagine someone who’s committing the killing simply to have other people see the images that he or his coconspirators have taken, and who would be deterred by the prospect that those images would no longer be legally available.
A killer’s desire for notoriety or fame isn’t solely reliant on a film they themselves produce. Given that the report’s recommendations would exempt bystander or police footage, there’s no reason to think the killer couldn’t achieve similar notoriety without livestreaming or otherwise filming themselves, casting further doubt that this restriction on speech would have any deterrent effect.
If the purpose is to shut down avenues by which a killer could achieve notoriety, the same logic can be used to argue that journalists should not be allowed to cover mass murders — a similarly unconstitutional result.
