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Incitement - A New Legal Framework

by Chauncey Tinker – 11 Apr 2019

[Fourth in a series of posts on the subject of the limits of freedom of speech. The third post was on the subject of current legal definitions of incitement and can be found here]

This post is an attempt to define a new legal framework for which types of incitement to commit crimes should be illegal, and which should not. My definition divides incitement into two main categories, DIRECT and INDIRECT. I propose that only direct incitement should ever be criminalized, and even then only when it is deemed as “CREDIBLE” according to a credibility test that I have set out below. As stated in the previous post I reject the requirement (that exists in the US currently) that a direct incitement should also have to meet the test that it incites IMMINENT criminal action, although the distance in time between the incitement and the crime (if committed) should I believe be a factor in determining both the credibility and the seriousness of the incitement.

DEFINITIONS

DIRECT INCITEMENT – Directly encouraging another person or persons to commit a crime.

INDIRECT INCITEMENT – Any speech that could conceivably inspire or indirectly encourage a person or persons to commit a criminal act but where that speech does not explicitly urge the incited person to commit the act.


DIRECT INCITEMENT

A CREDIBILITY TEST

A major problem with legislating against incitement is that people frequently make off-hand or even humourous inciteful comments which in other contexts could be deemed very serious indeed. I therefore propose a credibility test – is it credible that the incitement will be acted upon by others? The following questions should I believe be asked during any assessment of credibility:

1. Would the suggested crime be practically impossible? For example, incitements where the identity of the target is unknown to both the inciter and the incited person. In another example, perhaps someone suggests a violent crime be committed using an impractical means or a means unobtainable by the incited person. If the act is practically impossible then the incitement should be deemed not credible.

2. Does the inciter (the one inciting the crime) have undue influence over those incited? For example, is s/he the leader of a criminal gang, a mob boss, or a political or religious leader? Where such a significant influence exists I would suggest that the credibility test would be more likely to be met, i.e. that the degree of influence the inciter has over those incited should be regarded as a factor. Such factors as – is the incited person mentally deficient, does the inciter wield undue influence e.g. is he an older brother or gang leader? Is the inciter a highly regarded authority figure in the case of incitement of groups? Even if the inciter is merely a simple peer of the incited person, there could be factors such as the fact that they both belong to the same violent gang.

3. What is the context of the incitement? If for example the inciter is a comedian making a statement in the context of a comedy show, then it’s unlikely that even a direct incitement will be taken seriously by those hearing it, e.g. the comedian Noel Fielding apparently urged his followers to stab Nigel Farage.

4. Was the incited crime carried out? Even such an incitement as the above “comedic” performance becomes harder to dismiss if the crime were to be subsequently carried out. On the whole in this example I would be inclined to say that even in such an eventuality as the violent assault suggested being committed the incitement would still lack credibility due to the context. However if there had been previous attempts made to stab the particular named person then the incitement should I think be considered more credible, especially if the inciter had knowledge of the previous attempts. I think in some circumstances, even if no crime is committed an incitement should still be considered serious enough to prosecute, but the question of whether the act was carried out should be a factor in deciding the degree of credibility and the seriousness of the incitement.

5. Do those incited have a record of criminal activity, particularly the crime in question, and was this criminal history known to the inciter? Should we consider a bit of banter between friends on social media for example e.g. “Why don’t you go and kill so-and-so?”, “Yes that’s a good idea I’ll go and do it” to be credible incitement or not? Such an exchange might be regarded as a mere joke by both parties, we cannot see inside their minds, but I think such an exchange should be classified as more credible if one or other of the two friends has a criminal record, particularly one including violent acts.

6. What is the distance in time between the incitement and the crime being carried out? The longer the gap in time between the two must surely reduce the likelihood that the incitement had a significant impact on the degree to which the crime was inspired by the incitement, and therefore this should be a factor in judging the credibility of the incitement.

To summarize the credibility test –

  1. Would the suggested crime be practically impossible to carry out?
  2. Is the inciter likely to have an undue influence over those he incites to commit a crime?
  3. What is the context of the incitement? Obviously an incitement that takes place in a serious gathering such as a political or religious gathering is much more to be taken seriously than an incitement that takes place at a comedy show.
  4. Was the crime carried out?
  5. Is the incited person known to have committed a similar crime in the past, and was this fact probably known to the inciter?
  6. The distance in time between an incitement and the resulting crime actually taking place should also be considered when judging an individual case.

We cannot describe every possibly nuance that could occur and so I fear we will have to rely on a judge and jury to decide on the individual circumstances of each case. I believe that all the above factors should be considered when making a judgement however.

APPLYING THE CREDIBILITY TEST IN A REAL WORLD EXAMPLE

Here is a borderline case. Article from Politics Home:

Esther McVey claims John McDonnell ‘lynching’ comments put her in danger

The quote:

“I spoke at a packed public meeting and there was a whole group in the audience that kicked off, quite critical of the whole concept, because they were arguing ‘why are we sacking her, why aren’t we lynching the b*****d’?”

The audio of this comment is available in this BBC article:

Audio of John McDonnell’s 2014 ‘lynching’ remark

Due to the context of UK politics, in which serious acts of political violence are very rare, I would tend to think this incitement should be deemed probably not credible. Mr. McDonnell was merely repeating the remark made by others, so I don’t think the charge of credible direct incitement could be made against him in any case. As for those who actually made the remark I think they were PROBABLY speaking figuratively. Of course if such a lynching were to actually take place, then it would put a very different perspective on the comment, but there have not been any attempts made to lynch Esther McVey since. There is also no recent history of lynch mobs killing anybody in the UK (at least if we make a clear distinction between such acts and gang violence). The fact that a UK politician (Jo Cox) has been murdered in public since these remarks were made would tend to make such a statement more credible now I think however.

CODED INCITEMENT

A form of incitement that may appear to be indirect but which I think should probably be classified as direct is what we might call “coded” incitement. This is where the inciter uses a code phrase that is known by both parties to mean that a particular crime should be committed. I think in cases where it can be established that such a code was known to both parties then this should be considered a criminal act of the same seriousness as a direct and explicit incitement such as “go and murder so-and-so for me”.

The phrase Henry II is famously supposed to have used “Who will rid me of this troublesome priest?” is a difficult case. We need not worry here about the historical authenticity of this incitement, we are just considering an example. Of course as the King, Henry had probably as much influence over his knights as anyone ever does, but there is no hint anywhere that such a phrase was a known code of his time for “go and murder so-and-so”. I think overall in this case I would be inclined to believe that Henry was merely “sounding off” and probably did not intend for his knights to actually kill the archbishop. The phrase “rid me” could also plausibly suggest a non-violent act. In this case I would therefore rule this as not an incitement at all.

PRIVATE INCITEMENT AND GANG VIOLENCE

The hardest kind of direct incitement to deal with of course is those incitements that take place in private. The US authorities struggled for many years to convict the gangster Al Capone despite the involvement of his gang in a large number of murders. They eventually convicted him of tax evasion instead, such was the difficulty involved. The difficulty with gang related incitements that are not usually witnessed outside the gang will always exist, the authorities will continue to have to use undercover policing, wiretaps and confessions in cases like these.

RELIGIOUS INCITEMENT

A great issue that is dividing our society today is the problem of religiously inspired violence. I believe strongly that religions SHOULD NOT be excluded in any way from incitement law. No special privileges or “protections” should be granted to religions. I addressed this in a previous post in this series. I may take a closer look at particular religions in a future post.


INDIRECT INCITEMENT

DEFINITION

By indirect incitement I mean any speech that could conceivably inspire or indirectly encourage a person or persons to commit a criminal act where that speech does not explicitly urge the incited person to commit the act. In my opinion INDIRECT incitement should not be criminalized. Many of the examples I give here of INDIRECT incitements should most probably not even be deemed incitements at all, the reason I list them here is that I have come across claims that they do constitute incitement, and I give some examples of such claims.

GLORIFYING TERRORISM

In 2005, in the wake of the London terrorist attacks on 7 July, the UK govt. proposed new legislation that criminalized indirect incitement in the form of praising terrorist acts, quote:

“For example, saying isn’t it marvellous this has happened and these people are martyrs – not direct incitement to do something but something that could be construed by someone as giving an endorsement of terrorism.”

Quite apart from anything else I suspect the sheer number of people expressing such views, and the impossibility of identifying them all, makes this an absurd thing to try to criminalize, much though it may be tempting to punish those who express such views.

CRITICIZING GROUPS

There appears to be a notion among many politicians nowadays that even merely critical comments about particular groups or individuals should be suppressed. The reason given for the need for such suppression seems to come from the idea that such ideas could become contagious and lead to acts of violence against the mentioned group – people “egging each other on”, a sort of spiral of hatred.

The biggest problem with this idea is that if we legislate against such criticisms that then effectively makes it impossible to criticize any group’s behaviour, because such criticism might incite violence against that group. Imagine the impact on the democratic process if political groups were not allowed to criticize each other! For another example, if a religious sect was advocating child abuse, then we should be free to criticize that group in the strongest terms without being accused of indirect incitement to violence against that group. Only if we were to actually start shouting out say “Kill the followers of the child abuse sect!” (a direct and credible incitement) should we be guilty of incitement.

Even in the case of a racial group we should be free to criticize the behaviour of that group because, for example, that group might be disproportionately involved in crime. Only by a frank discussion of such behaviour are we likely to understand what is causing that behaviour, or discover alternatively that the behaviour is not real but imagined. Merely suppressing the views is unlikely to change anybody’s mind but rather increase suspicions that the truth is being suppressed.

Here are a couple of examples of such suppression from Germany, from Breitbart:

Married Couple Sentenced For Migrant Critical Facebook Group

PEGIDA Founder Bachmann Found Guilty Of Sedition

It becomes harder when we look at more extreme cases such as this case, where two men who had been sharing images of dead Jews and other material were prosecuted:

Two jailed for inciting racial hatred online

However I maintain that as long as people are not directly inciting criminal acts then more extreme expression should be allowed, as long as other laws such as privacy laws are not transgressed. If we don’t draw a very firm and clear line between indirect and direct incitement then we leave the door open to more subjective sentencing and important conversations could be inadvertently prevented from taking place. It is therefore better to err on the side of greater freedom of expression than the side of censorship. It is also more likely that the dividing line will shift over time if it is not thus clearly defined.

ACCUSATIONS OF INDIRECT INCITEMENT FOR POLITICAL ENDS

During the EU referendum campaign in the UK there were many accusations made against the Leave campaign that they were inciting hatred of foreigners by their opposition to immigration. Many politicians even attempted to blame the murder of the MP Jo Cox on the Brexit campaign:

Labour MP’s anger as Jo Cox murder used for political capital in EU referendum debate

The hypocrisy of these claims was starkly exposed when there was no corresponding condemnation of actually direct incitement of violence against Leave campaigners, for example consider these incitements to murder Nigel Farage:

‘Shoot And Stab Nigel Farage’: Hundreds Of Social Media Messages Urging Attacks On UKIP Leader Revealed

These politicians would be more believable if they applied this notion consistently. Their argument could be turned on its head as well, when the Remain side of the campaign were arguing that the Leave campaign were “project hate” for example, were they then indirectly inciting violence against the Leave campaigners?

Consider this absolutely ridiculous claim from a UK Labour politician called Chris Bryant who accused the Brexit referendum campaign of responsibility for inciting a Turkish coup:

Turkey military coup ’caused by BREXIT’, claims Labour MP

A TV presenter accused Nigel Farage of stoking hate, and tried to make a connection with the Nice terror attack where 84 people were killed:

Nigel Farage slams ‘unfair and wrong’ Ranvir Singh questioning on Nice in live interview

In another example of hypocrisy, we have yet to hear any politicians or mainstream media pundits blaming anti-Trump views expressed in the UK media of inciting this alleged attempt to assassinate US presidential candidate Donald Trump:

Briton accused of attempting to shoot Donald Trump pleads guilty to lesser charges and is expected to be jailed for two years

Clearly there was a political motivation behind all these accusations, which shows us how open to abuse the very idea of indirect incitement really is.

FIGHTING TALK – INDIRECT INCITEMENT AGAINST YOURSELF

The Pope famously said if you insult someone’s mother then expect a punch. Through this statement the Pope was condoning anybody who felt insulted by mere words who then responded by committing an assault, a very problematic statement coming as it did in response to the Charlie Hebdo massacre. I would not argue that the Pope himself was directly inciting violence here, because he didn’t suggest that you MUST hit someone who insults you. He was I think more just suggesting that it wasn’t wise to insult people. Therefore the Pope’s statement would not itself constitute incitement to violence in my view, however reprehensible it was in the context.

It is simply not possible to make a sensible definition of what constitutes “fighting talk”. By the context of his comment, I believe the Pope was implying that the Charlie Hebdo cartoonists were wrong to offend the followers of Islam by drawing cartoons of Mohammed. Were the Hebdo cartoonists inciting violence against THEMSELVES? I find this argument utterly preposterous. I feel that people need to grow up and stop taking offence at mere words and pictures. If you deliberately attack somebody except in self defence, then you are guilty of assault. I reject the idea that “fighting talk” should be unprotected speech.

SATIRICAL FILMS

A short film called “The Innocence of Muslims” was blamed by White House officials for provoking an attack on the US embassy in Benghazi, Libya in which 4 Americans died. From the Telegraph:

Benghazi scandal: What happened and what does it mean for Hilary Clinton?

It later transpired that the attack was a pre-planned terrorist attack, that in all probability had nothing whatever to do with the video in any case. The video was merely a satirical/critical look at the Islamic religion, it did not incite violence at all.

VIOLENT FILMS

Some violent films have similarly been accused of inspiring people to commit random murders. The film “Natural Born Killers” was one such. It seems to me that to be so inspired by such films would require someone to already be in a very disturbed mental state, and so it would be very difficult to be certain that the murderer would not have just found some other excuse for their actions.

COMPUTER GAMES

Computer games are often very violent and sometimes the violence is so evocative of real life situations that it must be considered. For example some video games have allowed the player to take the role of a terrorist killing innocent civilians. However I think the claim that playing computer games like these leads people to commit murder is very dubious and no evidence can prove this is the case. At the most it could be considered as a very indirect incitement and as such would not meet my criteria for prosecution. Again anyone who was so inspired would have to already be in a seriously disturbed mental state in my opinion.

RADICALIZATION THROUGH CRITICISM OF RELIGION

A truly absurd claim of indirect incitement is when people with anti-Islamic views who try to tell the truth about Islam are accused of radicalizing the followers of Islam. The Muslim was peaceful until this Islamophobe persuaded him that the Koran instructs him to kill the disbelievers; he then felt he had no choice but to join the Islamic State and kill some disbelievers, or so the theory goes.

Obviously this argument would make it impossible for anyone to criticize the Islamic religion truthfully, as no objective assessment of the Islamic texts could lead anyone to conclude that it does not incite violence. Criminalizing such indirect radicalization could in fact then be seen as a step towards submission to Islam, because it would in effect create a de facto blasphemy law only applying to Islam (or any other religion that can be demonstrated to incite violence).

Quote from a speech by President Obama:

“Groups like ISIL and al-Qaida want to make this war a war between Islam and America, or between Islam and the West. They want to claim that they are the true leaders of over a billion Muslims around the world who reject their crazy notions. They want us to validate them, by implying that they speak for those billion-plus people, that they speak for Islam. That’s their propaganda. That’s how they recruit. And if we fall into the trap of painting all Muslims with a broad brush, and imply that we are at war with an entire religion, then we are doing the terrorists’ work for them.”

CONCLUSIONS

I propose that incitement should be illegal only if it is believed by a judge and jury to be a direct credible incitement that is likely to lead or have led to a criminal act being committed. The set of tests of the credibility of an incitement outlined above in the DIRECT section should be considered by said judge and jury, in an effort to minimize subjective sentencing. However due to the nature of incitement there will always unfortunately be a subjective element to the judging and sentencing. All we can do beyond issuing such guidelines is try and ensure only sensible people become judges.

An incitement should be considered serious enough to prosecute even if there is some time delay between the incitement and the crime, i.e. the current US requirement that the incitement is likely to lead imminently to a crime being committed should be discarded. Even in cases where no crime has yet been committed, some incitements should be considered serious enough to prosecute if for example they are issued by political or religious leaders who are members of violent movements. In short, the set of considerations outlined here should be weighed up together to decide on whether a direct incitement should be prosecuted, and what the severity of the sentence should be if so.

Indirect incitements should never be criminalized because it is too difficult to prove cause and effect, and because the serious danger of inhibiting free speech/debate is too great. As I mentioned before in a post about hate crime, the way to deal with hatred is through dialogue and debate, not prosecutions. Prosecutions merely serve to increase the sense of victim-hood and a feeling that the state is siding with those who are hated, which is more likely to increase the hatred than reduce it.

RELATED POSTS:

Incitement and Current Law

Amending the First Amendment

Limits Of Freedom Of Speech - Harassment

The Principle of the Thing - Equality Before The Law

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