When does heated political rhetoric stop being protected speech and instead become incitement? One perplexing case study, says visiting scholar Richard Ashby Wilson (University of Connecticut), involves none other than the President of the United States. In a 2017 article for the Guardian, Wilson discussed the pending civil case against Donald Trump by three protestors who were attacked at a campaign rally following Trump’s statement, “Get ’em out of here.” While Trump’s defense argued that his words weren’t directed at his audience, Judge David Hale ruled in April 2017 that Trump’s speech could, in fact, constitute incitement to riot, especially given the president’s history of similar comments encouraging violence at other events.
Yet, the line between what is freedom of expression and what is incitement hasn’t always been clear, especially in the U.S. “The stakes in these cases are high—balancing free speech with public safety— yet incitement law is frustratingly murky,” Wilson writes. To help address these issues, Wilson is developing a framework that would better enable courts and legal scholars to identify incitement based on a series of empirical measures. In a new interview with the foundation, Wilson discussed his ongoing project, including the legal precedents for separating incitement from protected speech in the U.S., and how he is drawing from the social sciences to create a new standard for evaluating instances of incitement.
Q. Some of your current work looks at how courts define and prosecute incitement, or hate speech that results in violence. In what ways do incitement laws in the US differ from those in other countries? What kind of legal precedents for incitement exist both in the US and internationally?
Wilson: International criminal tribunals, such as those established at Nuremberg and for Rwanda and the Former Yugoslavia, successfully convicted politicians and media figures for inciting their followers to commit genocide and crimes against humanity. In the aftermath of the Holocaust, certain European countries such as Germany and France created strict incitement laws that punish not only speech that incites violence, but also speech that incites hatred against a protected social group. Germany has recently enacted legislation that permits the government to fine social media companies tens of millions of dollars for failing to remove content that violates their laws in a timely manner.
The United States used to heavily regulate political speech and the government suppressed social and communist activists for much of the twentieth century, but this restrictive regime was liberalized during the civil rights and anti-Vietnam war era. In 1969, the U.S. Supreme Court in Brandenburg v. Ohio announced a standard on incitement that is quite demanding with respect to intentionality and the risk that speech will produce an offence. This permits most political speech, including hate speech, but arguably does not effectively restrain speakers who publicly incite hate crimes.
Q. Why is incitement so difficult to identify and prosecute in the US today? Could existing incitement laws be used to protect minority groups from violence?
According to FBI statistics, there has been a sharp uptick in reported hate crimes in the last two years, particularly against immigrants, African Americans, and Muslims. Because many hate crimes are accompanied by denigrating speech, we can safely assume that an increase in hate crimes will also mean an increase in inciting speech.
The record of prosecutions for incitement is relatively meager, and this results in part from the fact that the test for incitement is quite demanding and requires that the prosecution show that the defendant intended to directly advocate a crime and that crime was likely to occur imminently. Further, there is insufficient guidance from the courts regarding the elements of “imminence” and “likelihood.” This has left district attorneys in the dark about what kind of speech might qualify as incitement to imminent lawless action. Prosecutors have limited resources and therefore they tend to avoid indicting an offence when they are unsure that they possess the necessary evidence to secure a conviction.
What is the result of impunity? Individuals inciting hate crimes are emboldened and may even ramp up their rhetoric. We should note that there are a number of civil cases moving forward presently, including the lawsuit against President Trump filed by protestors who allege that he encouraged his followers to assault them at his election rallies, and another suit against the organizers of the “Unite the Right” rally in Charlottesville in August 2017 for allegedly inciting white supremacists to attack counter-protestors.
Q. How can we use social science to create a standard for judging and regulating incitement? Is there a way that courts and legal experts can empirically assess the probability that certain forms of speech will lead to violence?
Nearly fifty years after Brandenburg was decided, courts have still not provided a systematic framework for determining the categories and contexts of speech acts that are most likely to cause imminent harm or injury. Judges and prosecutors are left to rely on their intuitions and personal hunches, and this is not a sound basis for law or policy.
On the other hand, social researchers who study political communication, persuasion and the effects of discriminatory language can offer evidence-based guidance about the kinds of speech and circumstances that are most likely to produce undesirable effects. For instance, we know that speech from political authority figures is more likely to influence behavior, especially if a figure is perceived by their audience as charismatic and if their speech is characterized by graphic imagery that draws on powerful historical narratives. An audience that is experiencing economic and political uncertainty is more vulnerable to language that scapegoats a minority population. Speakers that cultivate fear and resentment against target out-groups can motivate some followers to acts of violence, especially when the speaker identifies specific forms of action that can be taken immediately.
Furthermore, contemporary social science studies demonstrate a strong correlation between social media incitement and hate crimes in the USA, Germany, and Britain in 2016-17. Incitement is always an empirical question and each case must be decided on its own merits, and yet social research can provide courts with a protocol for a context-specific analysis of political speech. The same standards could be used by social media companies which are increasingly under pressure from governments and watchdog groups to remove content that incites or applauds hate crimes. It is possible to allow free and robust political speech and at the same time protect vulnerable social groups from those who encourage hate crimes.