The Volokh Conspiracy

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Volokh Conspiracy

How many crimes can you see being committed in this anti-gun 'public service' ad?


I've gotten several e-mails about this ad, and one reader asked: If a child does what the protagonist did—would the filmmakers be criminally punishable or subject to civil liability? (If you don't want to watch the ad, the short version is this: a teenager takes a gun from his mother's drawer, brings it to school in a backpack, gives it to a horrified looking teacher, and says, "Can you take this away? I don't feel safe with a gun in my house.")

The answer is likely no.

1. This speech is likely not going to be seen as intended and likely to produce imminent unlawful conduct; at most, even if it is intended to get kids to copy the protagonist's behavior, "at worst, it [would] amount[] to nothing more than advocacy of illegal action at some indefinite future time." That is not enough to qualify as punishable incitement, see Hess v. Indiana (1973) and Brandenburg v. Ohio (1969).

And the analysis would probably not be changed by the target audience being minors (again, if the speech is intended to get kids to copy the protagonist's behavior): The violent video game case, Brown v. Entertainment Merchants Ass'n (2011), seems to take the view that speech aimed at minors—at least outside the historically exceptional area of sexually themed speech—is generally as protected as speech aimed at adults. That minors are the audience might sometimes affect how the "likelihood" prong of the incitement test is applied (for instance, if some speech is unlikely to influence adults but more likely to influence impressionable minors). But it probably wouldn't just remove the "imminence" requirement, which is what would be required to have this ad qualify under the Brandenburg/Hess incitement test.

2. Nor is there likely to be any claim on a theory that this ad negligently promoted "copycat" activity, even if someone emulates the protagonist's behavior and someone is injured as a result. There have been several lawsuits over the past few decades claiming that some TV program or movie led some viewers—including child viewers—to copy what was being done, and those lawsuits have all been thrown out (whether on First Amendment grounds or on tort law grounds).

This having been said, the ad strikes me as pretty appalling. I doubt that it's persuasive advocacy for the proposition that people shouldn't keep guns, shouldn't keep guns when they have children in the house, or shouldn't keep guns unlocked when they have children in the house. (Whether those are sound propositions is a separate question; I'm just saying the ad doesn't really make much of an argument for them.) But I can imagine some impressionable teenager seeing what the appealing protagonist is doing, and trying to copy it, especially since the serious tone of the video seems to invite its being taken seriously. And the results could include expulsion, criminal prosecution, or even death.