Incitement and the Limits of Free Speech

February 8, 2006 from Talk of the Nation

NEAL CONAN, host: Yesterday, a British judge found Muslim cleric Abu Hamza al-Masri guilty of inflaming racial hatred and inciting followers to kill non-Muslims. He was sentenced to seven years in prison. Both Zacarias Moussaoui, and Richard Reed, the shoe bomber, have been linked to Abu Hamza’s mosque, in London.

This case and several others recently raise questions about when speech becomes a criminal activity. We want to know where you draw the line. Give us a call, our number is 800-989-8255. Our email address is talk@npr.org.

Joining us is Geoffrey Stone, a constitutional law professor at the University of Chicago, and author of Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism, and he joins us from the studios of the University of Chicago. Very good to have you on the program today.

Prof. GEOFFREY STONE (Law, University of Chicago): Delighted to be here.

CONAN: And, we have to begin, I guess, by pointing out that British and American laws are quite different in this respect. If Abu Hamza had been tried in a United States Court, are there any equivalent crimes?

Prof. STONE: He probably would not be a subject to conviction in the United States because f the protections of the First Amendment. Under American constitutional law, at the present time, an individual could not be prosecuted for giving speeches that lead other persons to engage in unlawful conduct, unless the speaker expressly advocates unlawful conduct and unless that conduct is likely to follow imminently from the speech. So…yes, go on.

CONAN: I was just going to say, is there any example you can give us of somebody who was convicted under that law in this country?

Prof. STONE: There has not, to my knowledge, been anyone convicted in those circumstances. The type of situation it envisions would be a mob, in which someone gets up on a soapbox and says, “Hang that guy”, and the mob then goes ahead and hangs him. But that’s the kind of paradigm of what, under American constitutional law today, would allow the punishment of the speaker. Otherwise, the basic premise is that the person to be punished is the one who’s, commits the crime, not the one who engages in the speech.

CONAN: So in one legal concept, you’re punishing what happens, and in another, you’re punishing what somebody says should happen.

Prof. STONE: Precisely. And in the United States we have a long history of trying to make sense out of this issue. In World War I, for example, the government prosecuted several thousand individuals who dissented against the war or the draft on the premise that, by criticizing the war and the draft, their speech had the effect of causing people to become disaffected with the government’s policies. And if they were disaffected, they were more likely to refuse induction into the Army, or to desert, or to act in an insubordinate manner. And during World War I those people were prosecuted and convicted, and the Supreme Court upheld the convictions on the grounds that they had, through their speech, caused other people to engage in this unlawful conduct.

So, what’s happened in the United States over the last 75 years, is that, as we’ve had experience with prosecutions of individuals for speech that has allegedly caused others to engage in crime, is that we recognized that it’s very difficult to preserve a robust freedom of expression while at the same time holding people responsible for the acts of others.

So, under First Amendment law today, the situations in which an individual could be punished are very narrowly defined.

CONAN: And, I guess the example everybody hears is yelling “fire” in a crowded theater, as somebody’s saying, that’s an example of where speech is not free. Would that be criminal if somebody was hurt in the ensuing stampede?

Prof. STONE: Actually, the important part of that hypothetical, which was offered originally by Justice Holmes, is a false cry of “fire” in a crowded theater. A true cry of “fire” in a crowded theater obviously would not be punishable, even though it created an immediate harm to people who were injured in the panic to get out of the theater.

So the falsity of the speech there is as critical as the connection between the speech and the harm.

CONAN: So there have to be, as you say, very specific things to constitute incitement in the United States.

Prof. STONE: Right. The combination of express advocacy of unlawful conduct; that is, the speaker literally has to advocate that members of the audience commit a crime or blow up a bomb or engage in terrorist acts. And, there has to be a very tight connection between the speech and the act. As long as the actor is thought to have sufficient opportunity to make an independent decision about whether to commit a criminal act or not, the law will essentially say, punish the actor, don’t punish the speaker.

CONAN: So this could not happen, for example, in, if you published something in a newspaper, that element of timing just wouldn’t be there.

Prof. STONE: Precisely. Under existing First Amendment law, a publication in a newspaper, even that expressly said that individuals in the United States should start blowing up busses, would not be punishable because of the fact that there’s no immediacy between the speech and the acts of those who actually carry out the conduct.

CONAN: We’re talking about the line between incitement and speech with Geoffrey Stone, a constitutional law professor at the University of Chicago. You’re listening to TALK OF THE NATION from NPR News.

And, let’s see if we can get a caller in on this conversation. Jennifer is with us, calling from San Jose, California.

JENNIFER (Caller): Hi.

CONAN: Hi.

JENNIFER: Um, yeah, I would just like to say, I’m an American Muslim, and I really feel that these kind of mosques that, where there’s incitement going on, should not be, it should not be tolerated.

CONAN: How do you un-tolerate it, though, if you have free speech?

JENNIFER: Well, I think if you’re making threats, and you’re calling for, you know, not only in Europe that they’re calling, they’re threatening Americans, but they’re also call, threatening leaders in other countries like President Musharraf, in Pakistan, and calling for his assassination. I think when you’re getting to that point where you’re talking about assassinating leaders, killing civilians, and carrying out acts of violence, that that absolutely cannot be tolerated.

CONAN: Geoffrey Stone, uh, thank you for the call Jennifer, we appreciate it.

JENNIFER: Thank you.

CONAN: And Geoffrey Stone, a lot of people would say, you know, maybe we ought to rethink that.

Prof. STONE: Well, I think that the rule that exists currently in the United States is not one that a person would come to easily or intuitively. It really is the result of the pragmatic understanding of what has happened in our own history with abuses of prosecutions of individuals on the claim that they were causing unlawful acts.

So, the second era in American history when this problem became acute was during the Cold War, when the government prosecuted individuals, and where state and local governments and private entities persecuted individuals because they were members of the communist party.

And the argument that was made there was that the communist party and its member advocated the violent overthrow of government, and indeed, one could find that kind of rhetoric within much of the communist discourse. And so what happened there is that speech that was offensive to people, primarily because the ideas they found odious was being punished on the excuse of the fact that the speech included these exhortations to overthrow; even though there was no serious possibility of such acts taking place, and even though there was no real fear that public expressions of the incitement were going to cause unlawful acts in fact.

So the difficulties are separating the dislike for the substantive ideas that a person is expressing with the ability to use, as a pretext, the illegal advocacy as a way of punishing those persons.

So the law we have in the United States is really the product of those two episodes; the World War I episode when individuals were being punished simply for criticizing the government, and then the solution, it was thought, was, okay, let’s only punish people if they expressly advocate unlawful conduct, but then we have the second period, during he communist era, in which individuals were expressly advocating violent overthrow of the government, but in fact there was no harm directly associated with it. And so we saw lots of people being prosecuted in otherwise disadvantaged even though the speech really wasn’t dangerous. So the current rule in the United States is really the result of those experiences.

And the question that we have to ask today is, if this type of situation arose in the United States, if we had speakers like Abu Hamza in the United States and there were terrorist acts that we believed were traceable to that type of speech, should we change those standards, because they were overly protective or speech? Or, we have to be careful, are we really just angry at them for holding offensive opinions, and we’re using the excuse of their advocating jihad as the justification for shutting them down, when our real reason for doing so is simply that we find them offensive?

Those are very difficult problems in constitutional law, and of course since Britain does not have a written constitution, most of these questions don’t arise at all under English law.

CONAN: Let’s see if we can get one more caller in. This is Mary. Mary calling us from Bethany Beach, in Delaware.

MARY (Caller): Good afternoon.

CONAN: Go ahead Mary.

MARY: One of the things I wanted to comment on that has struck me in all of this conversation is the lack of emphasis on always there is personal responsibility for one’s actions. For instance, Pat Robertson has advocated the assassination of the President of Venezuela. In no way would I ever imagine that he would be prosecuted if someone, based on that statement, actually carried out the act.

We are expected to have judgment on our own, no matter what anybody else says. And it’s, to me it’s not a matter of freedom of speech, it’s a matter of personal responsibility (unintelligible)…

CONAN: And Mary, I’m afraid we’re losing your cell phone, but thank you very much for the call. We appreciate it. In 30 seconds, Professor Stone?

Prof. STONE: Well, the point captures very nicely one of the ways of understanding the First Amendment; that we hold people responsible for their own individual actions. And, if the person who puts a bomb in the bus or assassinates a leader did so as a result of his own reflection, then under American law, the basic assumption is we target our punishment at that individual, not at the books they read, the people they spoke with, the conversations they had. That’s the person who’s responsible, that’s the person who should be held accountable for the act.

CONAN: Geoffrey Stone, thanks very much for being with us today.

Prof. STONE: Thank you for having me.

CONAN: Geoffrey Stone, a constitutional law professor at the University of Chicago, the author of Perilous Times: Free Speech in War Time, from the Sedition Act of 1798 to the War on Terrorism. He was with us from a studio at the University of Chicago campus.

I’m Neal Conan. This is TALK OF THE NATION, from NPR News.

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