The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Duke University professor Jeff Powell sent me the following response to my post on Brummer v. Wey, the "stop speaking about plaintiff" New York injunction case. I'm of course delighted to publish it and to offer some reactions:
Professor Eugene Volokh is an expert on First Amendment law, and one disagrees with him at one's peril. Still, if even Homer sometimes nodded, then Professor Volokh too may occasionally make a mistake. I think he has done so in his recent comment on an ongoing defamation case in New York, Brummer v. Wey. The plaintiff in that action, Christopher Brummer (a professor at Georgetown Law School) is suing a wealthy entrepreneur, Benjamin Wey, and his businesses for attacks on Brummer posted on Wey's "online tabloid" TheBlot. The case's origins go back to late 2014, when Brummer served on an adjudicatory body of the Financial Industry Regulatory Authority (FINRA) that barred two stockbrokers from future involvement in the industry; Wey apparently has had dealings with them. In response to the FINRA action, TheBlot began what Brummer believes is a concerted attempt to destroy his reputation as a scholar and his standing as a decent person. The New York trial court has denied Wey's motion to dismiss but the case has not yet gone to trial.
Professor Volokh is concerned about an unusual development in Brummer v. Wey, the trial court's decision on June 6th to enjoin Wey and his corporate co-defendants from posting articles about Brummer to TheBlot while the suit is ongoing and requiring them to remove all existing posts. Brummer, who is African American, moved for a preliminary injunction in response to TheBlot's publication of a series of articles and comments employing violent images and language in a racialized context. In one instance, an article about the FINRA action was prefaced by what appears to be an actual photograph of an early 20th century lynching, with photos of Brummer and others associated with FINRA superimposed and labeled "FINRA racists;" the text purports to quote one of the ousted stockbrokers (both of whom are African American) as saying that "FINRA deliberately picked Chris Brummer, unqualified moron to lynch us by the tree." Another example is a comment attributed to an otherwise unknown "Bill:" "These FINRA motherf—–s ruin lives! F— them or shoot them? Both perhaps." Brummer filed an affidavit accompanying his motion for an injunction describing his great fear about "harm to me and my family from Mr. Wey or generated by his grotesque calls to others to do harm."
It's obvious why Brummer, and the trial court judge for that matter, find TheBlot's grotesque attacks deeply offensive, but the court's decision to issue the injunction was surprising as a legal matter. The usual rule is that preliminary injunctive relief is not available in defamation actions, although many American courts will now enjoin the continued or repeated publication of statements after they have been held defamatory. The New York court's decision appears out of step with this general practice and is in obvious tension with the bedrock First Amendment principle that only the most pressing governmental interest can justify a prior restraint on protected speech. Professor Volokh, an admirable defender of First Amendment freedoms, is alarmed about the implications of what he believes is the Brummer court's failure adequately to respect those freedoms.
I agree with much of what Professor Volokh has written. But Professor Volokh also dismissed as constitutionally unacceptable the argument, advanced by the plaintiff's lawyers but essentially ignored by the court, that it was appropriate and consistent with the First Amendment for the court to enjoin the specific speech in question because it presents a constitutionally-unprotected "true threat" to Brummer personally.
True threats, as the United States Supreme Court defines them, are "those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." It isn't necessary that the speaker "actually intend to carry out the threat;" the idea is that the law ought to be able to protect people "from the fear of violence" as well as "from the possibility" that the threatening speech will lead to someone (not necessarily the speaker) carrying out "the threatened violence." As Justice Samuel Alito explained a couple of years ago, the First Amendment "does not protect true threats" because they "inflict great harm and have little if any social value." There is, in other words, no reason to conclude that the Constitution forbids an injunction limited to speech that falls within the unprotected category of true threats.
In his comment, Professor Volokh does not directly disagree with this conclusion, but he doesn't believe that TheBlot's lynching photo-and-broadside is a true threat in the constitutional sense. He makes two points: first, in the article it is Brummer who is the racist and perpetrator of the (metaphorical) lynching of the two stockbrokers; and, second, "an accusation, however hyperbolic, that someone is guilty of lynching isn't itself tantamount to a threat to lynch" that person. He goes on to give what he thinks is an analogous case, calling someone a Nazi "for being complicit as an Israel-supporting Jew in supposed crimes against Palestinians."
At first glance, Professor Volokh's argument seems logical, but its logic is abstract: A::B as C::D. Abstraction here is, however, a constitutional error. As the US Court of Appeals for the Second Circuit wrote less than a year ago: "Context is crucial to identification of a true threat. The context here bespeaks danger." In the context of the tragic history and present-day reality of racism in this country, a speaker who employs the imagery and language of lynching in a virulent attack on an African American—and who juxtaposes his victim's picture to the ghastly image of a lynching—has gone far beyond the hyperbole and caustic language protected by the First Amendment.
Lynching is our paradigmatic image of private racist violence against African Americans. TheBlot's article was expression coolly calculated both to frighten its victim and to rouse in susceptible readers racist and potentially violent sentiments about Brummer. The fact that the article's "argument" was that Brummer is the racist and lyncher is beside the point: racism is not logical, and in any event the accusation that the victims or racism are guilty of race hatred is a long-standing feature of American racist rhetoric. Professor Volokh's hypothetical ignores the crucial importance of context: his imagined slur would not draw on the history of American racist violence that gives the image of lynching its frightening power.
Taking into account the contexts of American history and society, and of TheBlot's hosting of attacks on Brummer laced with racial and violent imagery, I think the trial court in Brummer v. Wey can properly conclude that the lynching photo/article was a true threat, whatever Wey's personal intentions about carrying through on the threatening message. The First Amendment allows government, and specifically the courts, to protect the victim of such a threat from the fear and the possibility of violence to himself or his family while the victim is pursuing a legal action against the person issuing—or insinuating—the threat.
The American legal system affords freedom of expression extremely broad latitude, and rightly so. Determining whether the First Amendment permits a court to issue any injunction restricting the Brummer defendants' choices about what to say, at least in advance of trial, requires consideration of what Justice Harry Blackmun once termed "the broad right of the press to print" and "the very narrow right of the Government to prevent" expression for any reason. Blackmun wrote those words in an opinion dissenting from the Supreme Court's refusal to permit an injunction against speech in the great Pentagon Papers Case, which is a reminder (if you agree, as I do, with the Court's decision) how important it is to err on the side of speech. But true threats are not protected speech, and the First Amendment gives them no shelter.
For the moment, the defendants have obtained a stay of the trial court's order, and Professor Volokh has expressed the hope that ultimately the appellate court will vacate the injunction "preferably by making clear that such an injunction violates the First Amendment." I disagree: I think that the right outcome, in terms of fidelity to the First Amendment, is for the appellate court to modify the injunction so that it is a ban on those postings that, viewed realistically and in context, are true racist threats. The Constitution is not offended by relieving Brummer of the alarm he understandably feels at TheBlot's intimations of violence while he pursues his case against Wey, and the legal processes of trial and appellate review should ensure that Wey's right to engage in constitutionally protected speech is safeguarded.
Here are my thoughts in response (in addition to a thank you for the kind words and for the willingness to debate):
1. It seems to me that Powell's response mixes together two First Amendment exceptions—the exception for threats and the exception for incitement.
If the concern is that the articles that accuse Brummer of "lynching" the two black stockbrokers will "rouse in susceptible readers racist and potentially violent sentiments about Brummer," that's a concern about incitement: This speech should be punished, the argument is saying, because it may persuade readers to do bad things. But incitement of violence is punishable only if it is (a) intended to and (b) likely to lead listeners to engage in (c) imminent illegal conduct (Brandenburg v. Ohio (1969)). A mere "bad tendency," or a danger of misconduct, is not enough. (This is why, for instance, harsh criticism of many people—police officers, politicians, businesspeople and others—is protected even if it's possible that some listeners who hear the criticism will decide to attack the targets as a result.)
Here, there is no evidence that Wey specifically intended to get people to violently attack Brummer. There's no evidence that such an attack is likely. And in any event, it is clear that this did not contemplate an imminent attack (the classic example of that is the speech in front of the grain dealer's house, aimed at riling a mob that is present there and then). See, e.g., Hess v. Indiana (1973) (noting that "advocacy of illegal action at some indefinite future time" is not punishable incitement).
Nor can this fit within the narrow exception of solicitation of crime (U.S. v. Williams (2008)). Even if that exception applies to solicitation of specific crimes against specific targets at some unspecified future time, criminal solicitation has historically still required a purpose to cause the crime—no evidence of such a purpose on Wey's part was introduced. And in any event, if the imminence requirement is relaxed for solicitation of a specific crime against a specific target, such a relaxation would have to be matched by at least some requirement of a concrete call for action (or else the solicitation exception would swallow the limitations on the incitement exception). Setting aside the anonymous (and likely hyperbolic) comment, there is no such call in the Brummer-lynched-Harris-and-Scholander accusation.
2. So I think the merging of the threats argument with the incitement argument is unsound here. But what about the threats argument on its own?
The problem is that, regardless of "context," the post accusing Brummer of lynching Harris and Scholander just can't be seen as "the speaker mean[ing] to communicate a serious expression of an intent to commit an act of unlawful violence" to Brummer. Again, the post depicts the image of a lynched black man, but the text makes clear that the image refers to Harris and Scholander, Brummer's alleged victims. "FINRA deliberately picked Chris Brummer … to lynch us by the tree."
Brummer isn't shown with a noose around his neck; indeed, he is shown alongside two white men, all three in standard business photographs, with the captions "Sicko!" and "FINRA Racists" (and, as to Brummer alone, "Dr. Bratwurst").
I agree that "Lynching is our paradigmatic image of private racist violence against African American," but here it is being used to accuse Brummer of figurative racist violence—and of literal racist adjudication—not to threaten Brummer. The "tragic history and present-day reality of racism" can't justify, I think, categorically labeling images of lynching associated with a person as threats, when the person is accused of being the perpetrator of lynching (not urged as a target for lynching).
In this respect, Watts v. United States (1969) is instructive. There, Watts, at a public rally during the Vietnam War, said "They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J." "They are not going to make me kill my black brothers."
There, too, was a tragic history and present-day reality of political assassination: John F. Kennedy had been assassinated a few years before; by the time the Supreme Court decided the case, Robert Kennedy and Martin Luther King Jr. had been killed, too; in 1950, Puerto Rican nationalists tried to kill Harry S. Truman and in 1954 wounded several congressmen on the House floor.
But the court concluded that only "true 'threat[s]'" can be punished, and they must be distinguished from "political hyperbole," even "very crude offensive" hyperbole. Even when the statement expressly (though conditionally) stated a literal desire to kill the president, it still wasn't a true threat. And I think this is even clearer as to the accusation of lynching by Brummer, which doesn't expressly refer to lynching of Brummer.
Likewise, consider NAACP v. Claiborne Hardware Co. (1982). The NAACP had organized a black boycott of white-owned businesses in Claiborne County, Miss. To enforce the boycott, the organizers stationed "store watchers" who would write down the names of black customers who weren't going along with the boycott and the names would then be published in a local black newspaper and read aloud in church. Unsurprisingly, there were some incidents of violent retaliation against blacks who didn't comply with the boycott.
Yet the court refused to conclude that statements that "if we catch you going in any of them racists white stores, we're gonna break your … neck" and "You can go in [to the white-owned store], but the sheriff here isn't going to sleep with you at night" were constitutionally unprotected. The court did note that this was "extemporaneous rhetoric" and perhaps less latitude would be given to prepared written material. Still, the fact that even such statements, which seem pretty threatening on their face, could be seen as protected shows that speech that lacks such explicit threats shouldn't be lightly interpreted as implicitly containing the threats.
Lynching is a horrible crime. But accusations of horrible crime—lynching or otherwise—aren't the same as threats of horrible crimes, even when they involve "racial and violent imagery."
UPDATE (Tue., July 25): Prof. Powell has kindly passed along a further response:
I am grateful for Professor Volokh's response, which clarifies the actual point of disagreement between us. I agree with him on the importance of observing the analytical distinctions among the different categories of unprotected speech: doing so helps to safeguard the fundamental principle that protection for expression is the norm and governmental interference the exception. On the other hand, the categories clearly can and will overlap in application in some situations. A particular statement, for example, might be both an unprotected defamation and "fighting words." The categories are distinguished by their differing rationales for excluding some kinds of expression from constitutional protection.
Speech that is unprotected because it is an "incitement" falls outside the First Amendment because of its likely further effect in spurring its recipients to lawless behavior. Because, in Justice Holmes's words, "every idea is an incitement," the Supreme Court's precedents carefully limit the category of incitement to speech that, in the classic formulation of Brandenburg v. Ohio, "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." I am not arguing that the violent, racist imagery Professor Volokh and I are discussing is an incitement in the constitutional sense.
Speech that is unprotected because it is a "true threat," in contrast, is constitutionally unprotected because of its own impact in creating reasonable fear on the part of the person or persons who are its object. To quote one of the materially identical formulations in recent appellate decisions, "a 'true threat' in the constitutional sense is one that a reasonable recipient who is familiar with the circumstances would interpret as a serious expression of an intent to do harm." (United States v. White, 4th Cir. 2016.) The First Amendment does not protect such expression because of the harm the speech itself visits on the recipient. The Supreme Court explained in Virginia v. Black that "a prohibition on true threats 'protect[s] individuals from the fear of violence' and 'from the disruption that fear engenders,' in addition to protecting people 'from the possibility that the threatened violence will occur.'" As the words I have italicized show, the high Court's definition of true threats takes realistic account of the fact that threatening speech can injure not just because of the recipient's fear that the speaker may act on the threat but also because the recipient reasonably fears that the speech itself puts him or her in danger more generally. Whether the speaker intended to act on the threat is not dispositive.
I think the courts of appeals that have addressed the issue are clearly correct to hold that "'threats should be considered in light of their entire factual context, including the surrounding events and the reaction of the listeners.'" (United States v. Wheeler, 10th Cir. 2015, quoting the en banc 9th Cir., my italics). In application, the categories of incitement and true threat overlap: they are not, and should not be treated as, hermetically sealed and mutually exclusive. The Wheeler court, for example, directly rejected an argument that because the speech in question "may at first blush appear to be closer to incitement," treating it as a true threat would improperly "create an end-run around the stringent Brandenburg requirements and permit incitement to be charged under the more lenient threat standard." If the expression "fits squarely within the rationale for excluding true threats from First Amendment protection," that category applies even though the expression is not an incitement under Brandenburg. My argument is that the expression in question in Brummer v. Wey is a true threat gauged by this standard. Rather than conflating the incitement and true threat exceptions, I am following what I think is the best reading of the cases.
My disagreement with Professor Volokh, then, does not stem from confusion about the definition of "true threat" but from our differing estimations of how best to evaluate the lynching photo/article posted on TheBlot in the context of American history and society, and in the circumstances of the Brummer litigation itself. I greatly appreciate his more detailed explanation of his reasons for thinking that the expression in question should not be treated as a true threat, but I am not persuaded. Instead, I continue to think that Professor Volokh is mistakenly analyzing the ostensible cognitive content of the photo and article in the abstract, rather than interpreting the post as the frightening, pointed threat of racist violence that a reasonable person in Professor Brummer's position would experience.
I appreciate Prof. Powell's arguments as a general matter—but I don't think they (or the precedents) support treating an accusation of metaphorical lynching as a threat of lynching. (The speech in Wheeler, for instance, actually called on the speaker's supposed religious followers to kill, which might be understood as an implicit threat that the speaker or his supposed confederates would themselves engage in such killing; this is far removed, I think, from speech that simply accuses a person of a metaphorical killing.)
Such accusations, however incendiary, and whether or not justified, are a constitutionally protected expression of opinion. They cannot be stripped of their First Amendment protection simply because the alleged lyncher, as well as the alleged lynching victims, is black.