Thursday, February 23, 2006

AUN Opinion: Incitement to Riot, Fighting Words the Right of Free Speech

On Samizdata James Waterton has said he believes that criminalizing incitement to riot is a violation of the right to free speech. I disagree. While laws against incitement could of course be used to suppress legitimate protest, they are not in themselves a violation of individual rights.

Those who say that criminalizing incitement to riot is a violation of the right to free speech are in essence saying that it is a fundamental human right to stand in front of a crowd that one knows or reasonably should know will follow ones orders and state in the imperative that they should commit a crime.

The fact of human free will not withstanding, there are instances when one can know with a reasonable certainty that ones words will cause another to act in a specific way. In such instances one is not free of responsibility for the result when one utters the words. If one knows that if he orders it done, another will violate the rights of a third party, he has no right to order it.

To make this issue crystal clear, I hold that when Rohm ordered his SA thugs to break up a meeting of Jews, Catholics, Liberals, Social Democrats or even of Communists if they were meeting peacefully, he was guilty of violating the victim’s right to free association. To punish Rohm would not be to violate his right to free speech, but to protect the right of free association.

To take a slightly more ambiguous case if one spends several hours whipping a crowd into a frenzy of hate against blacks, whites, Christians, Jews, Moslems or who ever and then brandishes a torch over ones head and yells, “I don’t have to say anything more, you all know what to do,” one is at the very least guilty of criminal negligence when the crowd runs out and burns down the homes and businesses of the people or person he has incited them against.

Now there has been an idea seemingly put forth that because it is o.k. to punish a person for incitement, that some how means the people who carry out the deed are not guilty of a crime. I am not aware of any such legal doctrine and it certainly is not, in my view, an excuse for a crime that one is following the orders of another.

Part of this confusion seems to arise from the idea of a “fighting words” exception which is different than the incitement exception.

To take an example of this legitimate exception to the right of free speech, if one walked up to someone at the funeral of their mother who has just died of HIV and says to them, “your mother was a fucking slut and she deserved to die,” one has a reasonable expectation of being punched in the face.

My understanding of the fighting words doctrine is that it is reserved for just such situations where two people are in a confrontation and one person uses words that he knows or reasonably should know are going to cause an overmastering emotional response in the recipient such that he will attack the speaker. In such a case the speaker cannot claim to have been innocently minding his own business.

To bring this whole question to the most important present example, let’s see how this affects the cartoon war.

The scum marching through London with banners saying “those who insult the prophet should have their heads cut off,” have every right to do so. However if the leader of the protest turns to one of the people in the protest who he has encouraged to carry such a sign and says, “go cut off the head of X,” then I hold he has committed a crime.

When the Danish paper published the 12 cartoons it did so, not in the proximity of the persons who might have been offended and in a forum where offence is to be expected. (i.e. the editorial pages of paper) The most that could be expected was for the Moslem reader to shake with rage and then get a hold of himself. The problem was that instead after the moment of shock was over the Moslem’s did not get a hold of themselves, instead they went out and organized riots.

If instead the editorial board of the paper had marched up to innocent Moslems going about their business in peace and got in their face and said, “Mohammed is a pig who likes to fuck ten year old boys up the ass while they pray,” they would have been punched in the face and they would have deserved it.

There are few things more dangerous than a false understanding of rights. This tends to discredit the very idea of rights and can even lead to their subversion.

While people have every right to have opinions that are offensive to others and they have a right to express them, there are limits. They do not have a right to order a crime committed. They do not have a right to deliberately put another person in the position of having to instantly master the first spike of anger after hearing a deadly insult.

In both instances one is complicit in a breach of the public peace. In one case because one orders it, in the other because one is deliberately causing it by putting someone in a position beyond the limits of normal self control. Defense of the peace is a legitimate action of the state.

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