FREE SPEECH, MURDER MANUALS, AND INSTRUCTION OF VIOLENCE

The first amendment guarantee of freedom of speech is perhaps tested most severely when speech either advocates or instructs how to commit violent, illegal action. Even where speech does not do so directly, but merely has the potential to induce such illegality through suggestive words or images, juries are being asked to punish that speech by awarding substantial judgments in civil damages lawsuits. For their part, some trial and appellate court judges are increasingly treating such speech as conduct—balancing the perceived social value of the speech against its perceived potential for causing harm. In the wake of a rash of tragic high school shootings across the United States that have killed or injured dozens of students and teachers, coupled with recent multimillion-dollar jury verdicts and settlements in high-profile cases, the pressure to bring and permit such litigation seems likely to increase.

In its 1919 decision in schenck v. united states, the Supreme Court considered whether one could be criminally punished for advocating resistance to military conscription. The Court held that "[t]he question in every case is whether the words used are used in such circumstances and are 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. It is a question of proximity and degree."

Fifty years later, in brandenburg v. ohio (1969), the Court announced a more restrictive reformulation of Schenck 's clear and present danger standard: "[T]he constitutional guarantees … do 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." The Brandenburg Court found that an Ohio statute prohibiting advocacy of crime and terrorism was unconstitutional because it failed to "refine the statute's bald definition of the crime in terms of mere advocacy not distinguished from incitement to imminent lawless action."

Unfortunately, lower courts have frequently failed to follow the Supreme Court's Brandenburg edict. In cases involving speech urging tax evasion, courts have declined to protect speech that merely advocates or instructs how to commit unlawful conduct. Federal courts have also failed to protect speech advocating or instructing commission of a variety of other illegal acts, including the manufacture of the drug PCP and creation of an explosive device. In none of these cases, however, was it clearly shown that the speech was either intended to or likely to cause imminent lawlessness.

In Rice v. Paladin Enterprises, Inc. (1997), the U.S. Court of Appeals for the Fourth Circuit held that a book publisher could be liable for publishing speech that described how to be a contract killer. The court emphasized that the government had a compelling state interest "in preventing the particular conduct at issue" and that a jury could find that the only communicative value of the speech was the "indisputably illegitimate one of training persons how to murder and to engage in the business of murder for hire." The decision purported to distinguish Brandenburg on the grounds that it protected only the "abstract teaching of the moral propriety or even moral necessity for resort to lawlessness, or its equivalent," but not speech that instructs how to commit crimes.

Relying directly on Rice, the Louisiana Court of Appeal permitted discovery to proceed in Byers v. Edmondson (1998), a lawsuit claiming that the shooting of a convenience store clerk was inspired by the motion picture "Natural Born Killers." The Louisiana court's ruling—issued just weeks after the Supreme Court denied review of Rice—accepted plaintiffs' claims that "the film falls into the incitement to imminent lawless activity exception."

In truth, Brandenburg does not sanction any balancing of the perceived social value of speech against that speech's potential for harm. Indeed, doing so would appear to violate the First Amendment's fundamental proscription against content-based restrictions on speech articulated, for example, in the Supreme Court's opinion in r. a. v. v. city of st. paul (1992).

Although perceived social value is a factor that has been considered in the context of defining categorically unprotected speech, such as obscenity, it should have no bearing on the protection of speech advocating or instructing how to commit illegal action. Rather, courts should adhere to the Brandenburg formulation by considering only whether speech is intended to and is likely to cause imminent lawlessness.

The wave of high school violence that has gripped America at the close of the 1990s has already begun to inspire litigation that will further test judicial fealty to Brandenburg. The parents of three students killed during a Paducah, Kentucky, high school shooting spree filed a $130 million lawsuit against two Internet websites, several computer game companies, and the makers and distributors of the 1995 movie "The Basketball Diaries." Moreover, for better or worse, Rice will not be the crucible in which the Brandenburg principles are tested. Rather than risk a trial just weeks after the massacre that left fifteen dead at Columbine High School in Littleton, Colorado, the defendant publisher reportedly agreed to a multimillion-dollar settlement and the removal of its book from the market.

Douglas E. Mirell

Robert N. Treiman
(2000)