The Volokh Conspiracy
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Journal of Free Speech Law: "Incitement, Enthusiasm, and the Dangers of Negligent Protest," by John Inazu
From the "Gitlow v. New York at 100" symposium, held this year at the Arizona State University Sandra Day O'Connor College of Law.
The article is here; the Introduction:
On a busy Saturday afternoon in 1940, Walter Chaplinsky took to the streets of Rochester, New Hampshire, to distribute literature promoting the faith of Jehovah's Witnesses and denouncing all other religions. At one point, Chaplinsky encountered the City Marshall, whom he called a "damned racketeer" and a "damned Fascist." New Hampshire charged Chaplinsky under a criminal provision restricting "offensive" speech. In upholding Chaplinsky's conviction a unanimous United States Supreme Court asserted that "[a]rgument is unnecessary to demonstrate that the appellations 'damned racketeer' and 'damned Fascist' are epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace."
When teaching Chaplinsky to law students, I walk over to a nearby student and, in an appropriately loud and threatening voice, call the student a "damned racketeer." To date, not once have my words triggered a breach of the peace. The obvious point is that context matters. Chaplinsky and I may have spoken the same words, but the meaning of those words is determined at least in part by the context in which they are uttered. This latter observation has generated volumes of work in legal theory, linguistics, and philosophy. I won't revisit those debates here except to lay my own cards on the table: Meaning is somewhat but not entirely determined by context. To ignore context would mean a rigid fundamentalism; to defer to it entirely would mean an open-ended pragmatism without foundations. Neither of these options accurately describes the social world in which we live. But understanding context gives us a clearer sense of how to understand changed meaning not only among words but also among relationships, politics, and societies.
I think this is what is ultimately at stake in Oliver Wendell Holmes's famous dictum written a half-generation before the Supreme Court so confidently classified Chaplinsky's utterance as fighting words likely to breach the peace. That dictum, from Holmes's dissent in Gitlow v. New York, asserts with no less confidence that "every idea is an incitement" and that "the only difference between the expression of an opinion and an incitement in the narrow sense is the speaker's enthusiasm for the result." I want to suggest Holmes is right to assert that every idea is an incitement, but his subsequent focus on the speaker's enthusiasm neglects other important contextual factors. Chaplinsky's context included the generally understood meaning of the speaker's insults at the time he uttered them and the physical environment in which he uttered them. Without this additional context—in other words, without moving beyond merely "the speaker's enthusiasm for the result," we cannot adequately assess the likely harm of a speaker's words or whether the state should be permitted to limit those words based on that harm.
Most incitement cases also include an additional contextual factor: the audience that hears the words uttered and then chooses whether to act on those words. For this reason, most incitement cases involve not only speech but also assembly. But a speaker's words do not directly correspond to a hearer's actions. Hearers have their own agency, which means that they help determine the ultimate meaning, consequences, and effects of the speaker's words. This is one reason that groups—assemblies—often pose a greater risk of uncertainty and instability than individuals. Having more people in the mix complicates both communication and action.
The relationship between speaker and hearer is further confounded by the variable of time. Chaplinsky's words were limited to the audience immediately in front of him. But many incitements unfold over time. Think, for example, of a sustained protest, a social movement, or a revolution. In these cases, we will not always know what words will come to mean or what their eventual effect will be—we will not know how listeners separated from the speaker over time might interpret and act on those words.
In the sections that follow, I explore the preceding claims and suggest why Holmes's aphorisms in his Gitlow dissent insufficiently account for the contingencies of listeners, and expose vulnerable speakers and organizers to liability for downstream and unintended consequences of their words. I illustrate with two contemporary applications. The first is a misguided doctrinal development out of the Fifth Circuit: the concept of "negligent protest." In Mckesson v. Doe, the Fifth Circuit suggested that a protest organizer could be personally civilly liable for the downstream actions of another protester. Following a remand and the Supreme Court's intervening decision in Counterman v. Colorado, the district court granted summary judgment to the protest organizer, noting that he "cannot be held liable in negligence for actions taken while exercising his First Amendment freedoms." While Counterman and the district court's opinion limit the likely scope of negligent protest, the Fifth Circuit's novel expansion of liability remains on the books.
The second application focuses on the words of Donald Trump and the ensuing actions of his supporters rioting at the United States Capitol on January 6, 2021. The Capitol riot illustrates the magnitude of the danger of speech uttered in assembly—in this case, the violent assault on a core function of our democratic government. But even here, Trump's "enthusiasm for the result" of his words is far from clear, and it may well be that the same civil liberties that ought to shield the protest organizer in Mckesson should also insulate Trump from the consequences of his words on January 6th.
