[Third in a series of 4 posts about “Freedom of Speech”]
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 potential incitement into two main categories, DIRECT and INDIRECT.
Directly encouraging another person or persons to commit any crime. 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.
A CREDIBILITY TEST
I propose a credibility test – is it credible that the incitement will be acted upon by others? Is the inciter (the one inciting the crime) for example the leader of a criminal gang, a mob boss, or political or religious leader? Where such a significant influence exists I would suggest that the credibility test would be met, i.e. that a direct incitement should be regarded as a criminal act.
At the other extreme, if the inciter is a comedian making a statement in the context of a comedy show, then its unlikely that even a direct incitement will be taken seriously e.g. Noel Fielding apparently urged his followers to stab Nigel Farage. Even such an incitement as this becomes harder to dismiss however 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.
In between these two extremes it becomes much more difficult. 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. Of course if the murder they mooted is actually subsequently committed then that puts the exchange in a very different light and should probably be then regarded as credible. I think on the whole in cases where no crime occurs however such an exchange should NOT be classified as credible unless say one or other of the two friends has a criminal record involving serious violence.
The problem with social media is that it is just a little bit too easy to sit down and write something that could be construed as incitement without really thinking or particularly meaning what is written literally. I think this should be a consideration, a type of mitigating factor, as we look at such incitements. Writing a letter requires more effort, more “malice aforethought”, and usually requires knowing the subject’s address, whereas communications on social media are often made between individuals who don’t know each other in the real world (another reason to rule an incitement as not credible). However, this is not to say that incitements that take place on social media should not be considered POTENTIALLY just as serious as any other type of incitement.
To summarize the credibility test –
- Is the inciter likely to have an undue influence over those he incites to commit a crime. 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.
- Is the incited person known to have committed a similar crime in the past, and was this fact probably known to the inciter.
- The distance in time between an incitement and the resulting crime actually taking place should also be considered when judging an individual case. 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.
- 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.
- Would the suggested crime be practically impossible? For example, social media incitements where the identity of the target is unknown to both the inciter and the incited person.
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. All the above factors should be considered when making a judgement however.
For example, lets look at this speech from a US pastor, (which would not currently be illegal under US law at least by my understanding):
He comes really close here to saying that Al Sharpton, Jesse Jackson and chat show host Oprah Winfrey should be killed by the sword, and claiming that God is calling for this.
“you’ve got to annihilate the leadership thereof”
“to be destroyed with the edge of the sword”
“we need to annihilate black people”
“when the lord calls for the destruction of Jesse Jackson, Al Sharpton, to be destroyed with the edge of the sword, are we ready to do it?”
This is a very borderline case but I think I would rule that he is speaking figuratively not literally, partly because he appears to call for the annihilation of black people at one point, yet he is himself black, and also partly because he is talking about the use of the sword. It would probably be very difficult practically to kill any of those mentioned people with a sword because they have armed bodyguards, and so it is not really a credible incitement.
Here is another very borderline case, clearly a direct incitement:
However due to the context of a UK mainstream political discussion I would tend to think probably not credible, since Labour politicians in the UK are not really known as major rabble rousers, although recent events in the Labour party since Corbyn assumed the leadership have rather altered that perception. Mr. McDonnell was 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. The fact that a UK politician has been murdered in public since he made these remarks would tend to make such a statement more credible now I think.
GAUGING THE SEVERITY OF THE INCITEMENT
In cases where no crime is committed immediately, I believe we should still criminalize incitement particularly if the influence of the inciter is substantial. For example political and religious leaders with significant followings who incite violence within our country should be charged with direct incitement, even if no violence takes place, because of the sheer weight of influence that such people carry. The danger involved in ignoring such incitement was I believe demonstrated by the Orlando gay nightclub massacre in the US. The mosque involved has since suffered an arson attack as well, possibly demonstrating how these situations can potentially lead to retaliatory attacks (which then could lead to further escalation of conflict) if the law is powerless to intervene.
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 more 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 the most influence possible 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.
In the UK the problem of gang violence has been addressed by the use of the Joint Enterprise law which meant that even bystanders at a murder were convicted of the crime of murder. The use of this law has been controversial however:
I think we would need to study this law separately as it is a big subject in its own right.
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.
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. Of course this question becomes more debatable with some religions that appear to incite violence do not have any recent history of violence among their followers that could be associated with this incitement. As this is a very big subject I will cover it separately in the next post.
One particularly controversial subject has been the use of drone strikes against British nationals who have joined the Islamic State in Iraq and Syria. Are our politicians inciting violence when they order such drone strikes? I consider such drone strikes legitimate however because the individuals have joined a foreign state that this country is at war with, and so the normal rule of domestic law need not apply.
Generally speaking, when politicians call for the initiation of force against foreign powers or individuals, they are inciting violence. We should have high standards for the justification of the use of such force. I think on the whole we will leave international incitements involving states for another time, as it is a huge subject in its own right.
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 is because I have come across claims that they do constitute incitement in the past.
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 – CONTAGION OF IDEAS
There appears to be a notion among some politicians that even merely derogatory (non-threatening) 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. One problem with such suppression is that its not possible to prove that the one thing necessarily leads to the other.
Another larger problem with this idea is that it effectively makes it impossible to criticize any group’s behaviour, because such criticism might incite violence against that group. For 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:
INCITING HATRED OF GROUPS
It becomes harder when we look at more extreme cases where people are inciting hatred of groups, as opposed to merely criticizing them.
Consider this case, where images of dead Jews and other material was prosecuted:
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 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.
To quote Noam Chomsky:
“If we don’t believe in freedom of expression for people we despise, we don’t believe in it at all.”
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:
The hypocrisy of these claims was starkly exposed when there was no corresponding condemnation of incitement of hatred towards Leave campaigners, for example consider these incitements to murder Nigel Farage:
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:
A TV presenter accuses Nigel Farage of stoking hate, tries to make a connection with the Nice terror attack where 84 people were killed:
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.
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:
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 committed an assault. Very problematic coming in the wake of 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.
One problem with “fighting talk” is that it is 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.
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.
It later transpired that the attack was a pre-planned terrorist attack, that in all probability had nothing whatever to do with the video. The video was merely a satirical/critical look at the Islamic religion, it did not incite violence at all.
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 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 argument 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.
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 (so goes this cranky theory). He then felt he had no choice but to join the Islamic State and kill some disbelievers.
Obviously this argument would make it impossible for anyone to criticize the Islamic religion truthfully, because the religion can be proved to incite violence, as I shall argue in the next post. Criminalizing such indirect radicalization could in fact then be seen as a step towards submission to Islam, because it could in effect create a de facto blasphemy law only applying to Islam (or any other religion that can be demonstrated to incite violence).
“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.”
This sort of argument I believe demonstrates how trying to include indirect incitements leads to a great many absurd claims.
Some countries have made denial of the Nazi holocaust illegal, but I think this is a big mistake. Archaeological discoveries often come to light which change our understanding of history. We must always be able to challenge accepted wisdom about historical events. Let us argue against holocaust denial with evidence, not law.
An example of a claim that holocaust denial incites violence can be found here:
An additional consideration is that deniers use Holocaust denial to incite hatred against Jews. They usually claim that Jewish demands for reparations and restitution for property stolen during the Nazi era are specious and based on a falsification of history. There was no Holocaust, or the consequences were much less serious than Jews say they were, hence Europeans and European governments are being conned by the Jews. Almost invariably this constitutes incitement against Jews and Jewish communities, and frequently has led to violence against Jews and Jewish institutions. Again this undermines fundamental concepts of civil liberty and fundamental rights.
(Readers please note – I personally believe that the Nazi holocaust took place, I don’t want to get into a debate about that subject. I am simply arguing against laws that criminalize holocaust denial.)
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 well regarded by their followers. 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.