The Volokh Conspiracy
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Accused Buffalo Mass Shooter's Speech Wasn't "Incitement" Under First Amendment Rules
So holds the judge in rejecting this as an aggravating factor in the government's death penalty case, though many other aggravating factors remain.
From Judge Lawrence Vilardo (W.D.N.Y.) Tuesday in U.S. v. Gendron:
A federal indictment charged [Payton] Gendron with twenty-seven felony counts in connection with a shooting that killed ten people and injured three at a Tops grocery store in Buffalo, New York, on May 14, 2022. On January 12, 2024, the government filed a notice of intent to seek the death penalty. That notice included nine aggravating factors that the government proposed asking the jury to consider when deciding whether Gendron should be sentenced to death.
The Federal Death Penalty Act ("FDPA") enumerates certain aggravating factors and allows the jury to consider "other aggravating factor[s]" as well. The government alleged four enumerated factors in this case: grave risk of death to additional persons, substantial planning and premeditation, vulnerable victim, and multiple killings and attempted killings. And the government added five other aggravating factors: victim impact, injury to surviving victims, racially motivated killings, attempt to incite violence, and selection of site.
The court refused to dismiss most of the aggravating factors, but did dismiss the attempt to incite violence factor:
The government alleges that Gendron, "in preparation for and in committing the acts of violence charged in this case, attempted to incite violent action by others." Gendron says that this factor "rests upon constitutionally protected speech under the First Amendment." He contends that the evidence generally contains only "vague exhortations to 'act' in unspecified ways, or ways that have nothing to do with violent attacks." These "thoughts and words," he says, "do not rise anywhere near the level of incitement" and therefore "are constitutionally protected speech under the First Amendment that cannot be the basis of an aggravating factor." And because the government's evidence is not enough to prove incitement or even attempted incitement, he argues, the factor also is insufficiently relevant to the jury's sentencing decision.
The government responds that the evidence supporting this factor is not constitutionally protected and that even if it is, courts are allowed to introduce some protected speech if it is relevant to sentencing.
Based on the evidence that the government has presented, a jury could not find that what Gendron did constituted incitement. The Supreme Court laid out the test for incitement in Brandenburg v. Ohio (1969). It explained that "the constitutional guarantees of free speech and free press do not permit [the government] 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." In other words, to punish someone for speech that incites violence, the government must prove that the speaker intended unlawful violence to occur, unlawful violence was likely to occur, and unlawful violence was imminent. "[U]nsurprisingly, '[t]here will rarely be enough evidence to create a jury question on whether a speaker was intending to incite imminent crime.'"
Here, there certainly is evidence of the first factor—intent to incite unlawful violence. According to the government, before the attack Gendron "disclosed the links to his journal, manifesto, and livestream of the attack to approximately 65 Discord [real time messaging service] recipients," and made these materials "available to a wider audience" by "publish[ing] a post on [two Discord channels] containing links to his manifesto, journal, and livestream of the attack." The government says that Gendron's livestreaming the shooting is its "primary evidence of [his] attempt to incite violence."
Moreover, Gendron's writings explicitly evince an intent to incite violence. His manifesto lists as a reason for the attack "[t]o incite violence, retaliation and further divide between the European people and the replacers." And his journal says that he livestreamed the attack and published his manifesto online "to increase coverage and spread [his] beliefs." It also says that Gendron's "wish from the attack is that you[,] and I mean YOU the reader[,] become[ ] red-pilled and decide to fight back yourself." … "I hope to inspire YOU to attack against the replacers as I did[.]" … The government also alleges that Gendron's writings were "meant to serve as a 'guidebook'" for others to commit violence by "teaching others how to select the site for the attack, what gear is best, how to train, etc."
Gendron describes his writings as "adolescent ramblings" and emphasizes that he "copied and pasted verbatim" or "paraphrase[d]" some of his statements from another shooter's manifesto. But that is an argument for the jury—which could agree with Gendron that his statements were not serious and did not reflect his real intent, or with the government that when Gendron said he attacked Black people "[t]o incite violence," he meant it. There is ample evidence of intent.
But intent alone is not enough. Inciting violence outside the protection of the First Amendment has two additional requirements—likelihood and imminence. And the government does not explain how its evidence meets either of those requirements.
Instead, the government relies on Rice v. Paladin Enters., Inc. (4th Cir. 1997), a case from a different circuit in an entirely different context. In Rice, the survivors of homicide victims sued the publisher of a how-to guide for hitmen. The book was "so comprehensive and detailed that it is as if the instructor were literally present with the would-be murderer not only in the preparation and planning, but in the actual commission of, and follow-up to, the murder."
The publisher moved for summary judgment on First Amendment grounds. For the purpose of the motion, the publisher stipulated to facts that "establish[ed] as a matter of law that [it was] civilly liable for aiding and abetting [a killer in a triple homicide] unless the First Amendment absolutely bar[red] the imposition of liability upon a publisher in the commission of criminal acts." The court found that the book was "devoid … of any political, social, entertainment, or other legitimate discourse" and that "[i]f there is a publication that could be found to have no other use than to facilitate unlawful conduct, then this would be it." The court explained that Brandenburg's imminence requirement "generally poses little obstacle to the punishment of speech that constitutes criminal aiding and abetting[ ] because culpability in such cases is premised[ ] not on defendants' advocacy of criminal conduct, but on defendants' successful efforts to assist others." The court ultimately held that speech "tak[ing] a form other than abstract advocacy," such as speech that "constitutes … aiding and abetting of criminal conduct," does not implicate the First Amendment and that a reasonable jury could find that the publisher aided and abetted murder.
The government suggests that Gendron's writings are like those in Rice because "analyzing and recommending gun components … and body armor … largely amount[ ] to aiding and abetting other racially[ ]motivated mass shooters." Docket Item 411 at 22-23. But to prove aiding and abetting, the government must prove that "someone other than the defendant" committed an "underlying crime." Among other obvious differences between Rice and this case, there was an underlying crime in Rice but not here. And because Gendron did not aid and abet anyone, this Court cannot ignore Brandenburg's imminence and likelihood requirements.
To meet the likelihood requirement, there must be "a high probability that [the] incitement would be effective." And "it is a long leap" from an action's being "foreseeable" to its being "likely" under Brandenburg.
To meet the imminence requirement, the time between the speech and lawless conduct must be less than "weeks or months." See NAACP. v. Claiborne Hardware Co. (1982); see also United States v. Fullmer (3d Cir. 2009) (explaining that imminence requirement was not met when "events occurred a minimum of three weeks apart"). "[A]dvocacy of illegal action at some indefinite future time" does not meet the imminence requirement. Hess v. Indiana (1973) (finding that defendant's statement that "[w]e'll take the fucking street later" or "[w]e'll take the fucking street again" did not meet the imminence requirement). Something like "persistent exposure" to speech that "gradually undermine[s]" another person's "moral discomfort with violence to the point that" the other person eventually "solved … social disputes with a gun" is "far from the temporal imminence … required to satisfy the Brandenburg test."
Here, the government has not argued that there was a "high probability" that Gendron's incitement would be effective, nor has it argued that any violence occurred— or even that it was likely to occur—within the temporal bounds of Brandenburg. Nor are those elements apparent from the evidence the government has identified in support of the incitement aggravating factor.
The government is correct that there is evidence Gendron "sought to inspire others just as he had been inspired." But it is at best "foreseeable," not "likely," that someone "at some indefinite future time" might be so "inspired." On these facts, Gendron's actions do not satisfy the incitement test.
The government argues that its aggravating factor nevertheless can be saved because "[e]ven if [Gendron]'s statements and postings that support this aggravator are found to not pass the incitement test under Brandenburg, … [it] may still introduce evidence of protected speech for relevant evidentiary purposes, such as to prove motive or aggravating factors."
"[A] defendant's abstract beliefs, however obnoxious"—or worse—"may not be taken into consideration by a sentencing judge," but "[t]he First Amendment … does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent." Wisconsin v. Mitchell (1993); see also U.S. v. Fell (2d Cir. 2008) ("[T]he government may introduce evidence of beliefs or associational activities, so long as they are relevant to prove, for example, motive or aggravating circumstances, to illustrate future dangerousness, or to rebut mitigating evidence."). Put another way, a defendant's beliefs and protected speech cannot be used as an aggravating factor, but they can be used to prove another aggravating factor.
Here, however, the aggravating factor the government seeks to prove is that Gendron attempted to incite violence. The term "incite" is a legal term of art, and as this Court has explained, the evidence does not meet the high standard of incitement. Thus, the speech cannot successfully be used to prove that aggravating factor. And that leaves only the protected speech as the aggravating factor, which would amount to punishing Gendron for his protected speech. That is precisely what the law prohibits.
