Free Speech

Criticisms of People That Might Create a Risk of Attack by Third Parties

They are still protected by the First Amendment.

|The Volokh Conspiracy |

I blogged this morning about what I think is an unconstitutional injunction that bars defendants—who had accused a police officer of making a white supremacist gesture—from mentioning the name of the officer, who is suing them for libel. I think the underlying allegations against the officer are quite weak (the gesture, the familiar "OK," has long been used with no racial dimension, and I expect continues to be largely used this way). His libel case may also be weak, because the allegations may well be understood as the expression of opinion (a complicated question). But my point was simply that it's unconstitutional to broadly ban defendants from mentioning the plaintiff's name, especially when that's done before trial and without adversary argument.

Some commenters, though, suggested that perhaps the injunction might be justifiable not on a libel theory, but on the theory that the accusations against the officer might foment threats of violence against him, or outright violent attack. That argument doesn't work, I think, but let me explain why.

[1.] Something similar, though with more risk of violence, arose in NAACP v. Claiborne Hardware Co. (1982). In that case, the NAACP had organized (in the late 1960s) a black boycott of white-owned businesses in Claiborne County, Mississippi. Not all black residents were inclined to join, so to enforce the boycott, the organizers stationed "store-watchers" who wrote down the names of blacks who weren't complying; "names of boycott violators were read aloud at meetings at the First Baptist Church and published in a local black newspaper." Those people "were branded as traitors to the black cause, called demeaning names, and socially ostracized for merely trading with whites." And there were some violent attacks against those who declined to participate in the boycott:  "In two cases, shots were fired at a house; in a third, a brick was thrown through a windshield; in the fourth, a flower garden was damaged…. The evidence concerning four other incidents is less clear, but again it indicates that an unlawful form of discipline was applied to certain boycott violators."

Store owners sued, essentially claiming that the interference with their customers through threat of violence (as well as of social ostracism) unlawfully interfered with the businesses themselves; and they got damages against the organizers, as well as an injunction. Unconstitutional, the Court held: Though violence and true threats of violence could be punished, but organizing the boycott and naming those who weren't complying was constitutionally protected. (There's more to Claiborne Hardware, but this is the core point that's important in this case.)

The same applies here: Merely criticizing a police officer by name, asking the city to investigate and perhaps discipline him, or even urging "social ostracism" (as in Claiborne Hardware) of the officer is constitutionally protected. That a tiny fraction of people who hear the criticism might follow up with illegal activity (such as "violent acts or threats") can't justify restricting speech to the vast majority who won't act illegally based on it. If the post itself contained threats, then it might lead to liability, and perhaps an injunction against the threats. (Note, though, that there was some potentially threatening language in Claiborne itself, which the Court found wasn't enough for liability). But that can't justify a categorical prohibitions on using a person's name as such, simply on the theory that such use could lead to bad behavior.

[2.] This isn't, though, just a matter of precedent; it's a necessary principle if we are to be able to freely discuss specific incidents, rather than just conceptual abstractions.

Unfortunately, virtually all speech that accuses someone of misconduct—however correctly—could yield some illegal behavior against him. Any newspaper story reporting that someone was arrested for a crime, or convicted of the crime, could lead some people to send the criminal threats, or vandalize his home, or physically attack him. (That is of course especially true if the crime is especially heinous, such as child molestation or rape.) Any story accurately reporting misconduct by a government official, police officer or otherwise, might have the same effect. Any story reporting a person's politically repugnant views (left, right, or otherwise) or unpopular religious views could yield attacks, as well as illegal (and sometimes criminal) employment discrimination.

If the mere risk that some readers will act illegally based on the story can justify orders to take down the story, that will mean that newspapers, bloggers, and others will routinely have to remove or anonymize such stories. (If such a risk can justify civil liability in case someone does act illegally based on the story, that will deter all such stories in the first place.) And even if there has to be a showing of outright threats of violence, such threats are (a) regrettably not uncommon, given how cheap they are to make, and (b) pretty easy to safely fake. I've found over 85 outright forgeries of court orders aimed at trying to get criticism deindexed from the Internet. How much easier and safer would it be for someone to fake an anonymous death threat (or several), when that becomes the reliable way of getting criticisms removed?

For this reason, I think Claiborne Hardware and other similar cases are correct. People need to be free to discuss alleged misbehavior by others—especially but not only by police officers and other public officials—and the risk that some small fraction of the audience will misbehave can't justify restricting this freedom.

NEXT: Kamala Harris Is So 'Radical,' Trump's Campaign Says, That She Criticized Joe Biden's Criminal Justice Record. So Does Trump.

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  1. People do realize that the “OK sign as a white supremacist sign” was the product of trolling promoted initially on 4Chan, right?

    1. That’s true, but it doesn’t necessarily mean that it isn’t a white supremacist sign now. They could have adopted the sign and made the prank come true. (The word “queer” was originally a slur by anti-gay people but is now often used by gay people to identify themselves, for instance.)

      1. “but it doesn’t necessarily mean that it isn’t a white supremacist sign now. They could have adopted the sign and made the prank come true.”

        But there’s no evidence of that. At most, there’s evidence of people who may or may not have questionable views using the sign to mock people who think it’s a racist symbol.

        1. I think ok and Betsy Ross are troll plants whose purpose is to get innocuous symbols a lose attachment to Nazis so the left can cancel it so as to stir up rage in plain old people. I wouldn’t rule out that this is the kind of foreign influence nobody is looking for, to sew divisiveness.

      2. Just because the “Protocols” was a fraud doesn’t mean Jews aren’t actually scheming to take over the world!

    2. How many white supremacists do you believe are to be found in America these days, Jimmy? Three? Thirty? One hundred?

      How many racists? One hundred? Five hundred? One thousand?

      I am interested in your assessment because I believe you are one of “colorblind” Americans from the Fox-Federalist-Republican-Volokh Conspiracy tradition.

      1. Gotta wonder if Kirkland ever heard the story about the little boy who cried “wolf.”

        1. I prefer the story featuring “open wider.”

          1. The little boy got eaten.
            Maybe you will too.

      2. How many racial supremacists are there in the United States? Probably a few percent of the population. But I say racial supremacists because you can find them in every race. Plenty of Asians, Latinos (Latinx?), Indian (subcontinent), and AA’s think they are superior because of their race and solely because of race. And my guess is that the percentage of “minorities” that believe in racial supremacy is probably much higher than white people. This is probably why the Left has to go back to the same watering trough in order to pigeonhole white people to a racist organization by blaming the non-existent Klan. Because if you look for an actual white supremacist group you won’t find one that is anything more then either a false flag operation put on by the SWPL or a few scattered people with a website.

        1. The absence of white supremacist organizations — formal or informal, incorporated or unincorporated, with letterhead and offices or without — must be the reason there has been no organized opposition (and in particular no litigation) with respect to removal of statues commemorating violent racists, vanquished traitors, and reprehensible losers, especially in southern states.

          When, in your judgment, was our nation finally rid of its white supremacist organizations?

          1. Keep in mind when the pendulum swings in the other direction, and it always does, the people who are looking to revise history will probably have a completely different set of values, some of which you might not agree with when they come for your slice of history…

            It would be interesting to have a real historical take on organizations, but my recliner guess would be most of these were dead by the 1970’s. Definitely by the 80’s. I don’t think any formal organization has been around for at least 40 years.

            1. Actually, they are still out there, and he’s gonna get eaten because no one is going to pay attention when a real one finds him.

      3. Rev, the better question is, how does the number of “white supremacist” (whatever it is) differ from any other form of discrimination?

        Personally, the more obvious and common discrimination is the affluent v the poor AND the attractive v ugly.

        Underlying all discrimination, though, is the real question of, what real effect do they have on someone‘s life, other than their feelings? In other words, the only power bigots have, is that given to them by their “victims”.

        The kids say, “haters gonna hate”. Why can’t this same mentality be applied to racial or any other discrimination?

        Other than when the government does it by use of force, why in the world does it matter?

  2. Plenty of good people on both sides, eh?

    1. ???

      1. Sarcasto’s poor attempt to cast aspersion and promote a false comparison to President Trump’s alleged statements after the Charlottesville, VA incident.

        1. I assumed that was the referent, but I don’t see the analogy.

  3. People are going nuts. An accusation seems to be sufficient for some people to want to jump straight to punishment. A misleading accusation is just as good as a real one. I wonder how the law will adapt to these social changes?

  4. I’m curious for others’ thoughts on what, if anything, will happen to stop or at least slow the spread of doxxing and home visits by protestors. I don’t recall this being a frequent occurrence 10+ years ago, certainly not 20+ years ago. But now we have many examples of protestors and large groups going to the homes of mayors, senators, police chiefs and police officers, public health officers (that caused the Orange County, CA one to quit after she implemented a mask mandate), the L.A. District Attorney (with her husband coming out with gun in hand), TV personalities (Tucker’s home/family), and I assume non-public citizens who get on the wrong end of a viral video or Twitter campaign. Obviously these must be terrifying for the family in the home. (And I’m putting aside any individual case and its facts, as it happens to people from both sides of the political spectrum, and probably some good people, some bad people, and a lot of people in between.)

    I assume this is so much more common now because it’s so easy to find someone’s address online. For a quick test, I Googled the name of the host of a podcast I was just listening to, and since I know what city he lives in (D.C.) — and he mentions his wife’s name from time to time, though I don’t think it was needed for the search — I was able to find his home address, his age, etc. in less than 5 minutes with a simple Google search, and clicking on the search results (Spokeo, etc.). If I were in D.C. and a nut, I could drive over and ring his doorbell, all from a simple Google search. (For smaller towns, I also imagine that it’s common knowledge where politicians or other higher profile individuals live, shop, etc.).

    My question is this: will it now always be this way? Will people, let’s say politicians or public officials, decide not to take a controversial vote or position because they fear being targeted at home? Will people avoid running for office or becoming cops or speaking out on issues due to this phenomenon?

    And are there any solutions that can pass constitutional muster? Any technological solution where you can pay to truly have your address remain off the web? Any laws enacted to make it easier to record property with no easy way to connect the dots to who “owns” it? Will more people and politicians move to gated communities with heavy security and high walls? Will injunctions issue to bar protests at someone’s home? Any other solutions? Or are the odds of anyone in particular becoming the target of such protests so remote that not much will change and everyone will just assume or hope that they won’t be on the receiving end? I find this issue interesting for some reason.

    1. “I assume this is so much more common now because it’s so easy to find someone’s address online. ”

      There was a time, not so long ago, when a book containing the names, address, and phone numbers of pretty much everybody in town got delivered to your house once a year, and that book got kept by the phone. If anything, it’s harder to find someone’s address nowadays.

      1. That’s just crazy talk.

    2. I’m thinking that someone answering the door with a MAC-10 — and firing — will discourage a lot of this…

      1. What is wrong with you?

      2. The Volokh Conspiracy’s claimed civility standards are no match for Dr. Ed 2. You can talk about shooting liberals, but for the love of an illusory God do not make fun of conservatives . . .

        Ready to apologize, Prof. Volokh? Or at least to admit the mistake?

        1. You can talk about shooting liberals, but for the love of an illusory God do not make fun of conservatives . . .

          Damn skippy. A search for “carry on, clingers” on this site only returned 718 hits.

          It must be painful indeed to be so marginalized.

    3. Great questions.

      And are there any solutions that can pass constitutional muster? Answer: Yes, but I think the imperfect solution(s) lie with the individual. For instance, opting out of mailing lists. Having an LLC purchase properties. Choosing not to allow mobile apps access to your data. All ways to obscure yourself. But doing it by law? I kind of doubt it. I know it sucks that individuals should even have to do this, but honestly, I believe that is the best way because the individual decides for themselves.

      Your larger point. Doxxing has been around since the dawn of time. Exposing people (for whatever motivation) to public scorn and ostracism will not go away. Nor should it. To me, the bright line has always been violation of personal property rights, and individual civil liberties.

      Professor Volokh posits existing precedent says in essence, ‘Tough luck. Live with doxxing’. The problem is the greater proclivity today toward violating personal property rights and individual liberties by motivated groups of people. And there has been violence. Moreso than in the past? It feels that way, but I am not sure of the objective data – it that real, or just blown up by the media? Do we even track ‘intimidation incidents’ as a distinct ‘thing’ (i.e. protestors and large groups going to the homes of mayors, senators, police chiefs and police officers, public health officers, TV show hosts, Federal Cabinet Officers, etc).

      In sum, I think we are stuck. Doxxing is here to stay, and it will dissuade very capable people for running for office. What we will be left with are less capable people that will be more unrestrained in their actions. Not a good mix.

  5. EV: That a tiny fraction of people who hear the criticism might follow up with illegal activity (such as “violent acts or threats”) can’t justify restricting speech to the vast majority who won’t act illegally based on it.

    Why would anyone suppose that pre-internet reasoning would still be good law? Or in any way comparable to the way the same reasoning worked before the internet?

    Before the internet, false critical commentary was rarely widely published, because customary third-party editing prior to publication prevented it. Now, on the internet, false commentary always gets published, because no one edits anything.

    Another difference? An unfounded threatening critic who did achieve publication could previously expect his commentary to fall under the eyes of perhaps a few like-minded-but-deranged-and-dangerous individuals, and those by happenstance, probably among a smallish overall audience. That fact provided a reassuring margin of safety to targets of unfounded criticism. Now, algorithms systematically direct commentary to like-minded people, including the deranged and dangerous—and those among an overall audience numbered almost without limit.

    The, “tiny fraction,” EV refers to was previously also tiny in numbers, and limited severely in its ability to deliver concerted response. No more. Even a tiny fraction of an audience of millions may constitute large numbers. And today, each of those is newly empowered to republish without cost, to further enlarge, mobilize, and enrage the mob—something which was all but impossible in the past.

    That new dynamic defines the difference between weaponized speech as the internet knows it now, and the bygone legal regime of pre-internet speech and legacy publishing. Professor Volokh, of all people, ought to know enough to avoid conflating those two utterly different factual situations.

    1. Who said anything about “false” or “unfounded” claims? If anything, wouldn’t a true accusation of wrongdoing, vetted by the most accomplished of septuagenarian newspaper editors, be even more likely to “enrage the mob”?

      1. Noscitur, no. The opposite. A culture of license encourages (and teaches) violence. A culture of standards encourages (and teaches) self-restraint.

        1. lathrop, without agreeing with your original post…this last observation you made about a culture of license versus a culture of standards was a very astute observation. I agree.

        2. Whoa there SL…you’re at the edge of the very deep end because it sounds like you’re pushing indoctrination.

          A culture of license?

          Isn’t that what America is all about?

          What about freedom?

          What about liberty?

          The US has the longest form of government in the world precisely because of our freedoms and liberties.

          We MUST allow and actually encourage all voices to be heard (even the ignorant ones from Dr. Ed).

          We cannot survive with a static, monolithic society (you hear that conservatives!!!), and the only way to survive is to be flexible, sometimes compromising (a little anyway), and allow all persons to have their say.

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