Inspired by recent events, I looked up the legal definition of incitement in the US. For example, the First Amendment does not protect speech if the speaker intends to incite a violation of the law that is both imminent and likely (https://en.wikipedia.org/wiki/Imminent_lawless_action).

I wrote some legal philosophy but never took a college course in law, and I am unsure if highly irresponsible but unintentional encouragement of violence is a crime in the US. [Note, this question has nothing to do with process of impeachment that might have a different definition of incitement.]

  • An example (taking the question in isolation, as different people might have different views of recent events) might make this clearer. Would it be correct to assume that the hypothetical speaker in your scenario did not intend to specifically encourage violence, but otherwise acted intentionally?
    – Ryan M
    Jan 14 at 11:35
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    Relatedly, "highly irresponsible" is quite subjective, but I'm struggling to come up with a more objective replacement...that might be where an example might help.
    – Ryan M
    Jan 14 at 11:36
  • @Ryan M, Correct, the hypothetical speaker did not intend to specifically encourage violence, and intentionally made the speech. I add that the hypothetical jury unanimously agrees that the speech was an imminent and likely cause of violence among a small but powerful sector of society, and the speech ended up causing a violent outburst. Also, the speaker was diligently warned about this small but powerful sector of society and previously stated in public that there might be some violence from this sector. Jan 14 at 17:57
  • My use of the term “highly irresponsible” refers to the speaker’s knowledge about the violent sector while the speaker never proactively condemned the violent sector before the violent outburst. Jan 14 at 18:11

Generally, in cases involving speech that may not be protected by the First Amendment, the burden of proof requires the prosecution to prove that the speech was not protected and that the speaker did intend the speech to incite imminent lawless action. Words that may be used in a metaphorical sense(i.e. "You gotta fight! For your Right! To PAAAAAARTY!) and a literal sense will always defer to the speaker's stated intent are assumed valid unless and until they are proven to be false statements to intent.

In the above example, almost every who has heard the Beastie Boy's song can probably infer from the lyrics that the Beastie Boys do not want teenagers to get into actual fist fights against there parents and teachers. Rather, they are listing the amount of restrictions on what a teenager can do for amusement and encourage a verbal rebuke only if the parents start complaining about listening to the Beastie Boys music (by pointing out they hate school, can't smoke despite Dad's 2-pack-aday addictiion, mom's strong disapproval of a minor looking at pornagraphy, and the rules about the teen's physical appearence including clothing and hair style, the restriction on music might be a bit extreme.). There's nothing in the lyrics to assume a call to violence. If the song did inspire that in a teen, it's far easier to convict the teen for the crime of assault and battery than it is to prosecute the band that sung the song, and it's far to allow the harmless song of teenage rebellion to persist than to control the consumption of ideas to such a degree that there is no recourse for a Beastie Boys fan to resort to violence to demand to music.

To paraphrase German philosopher Heinrich Heine, "Those who burn books, will burn men next." One cannot destroy a "bad" idea by destroying the book (or other media storage) as they are only the tools through which ideas are communicated from their actual place of storage. It's rather like taking a hammer to your computer monitor to remove a computer virus. It's still there, and it's still going to cause the trouble it will cause... all you've done is taken away your ability to see it.

  • I appreciate your answer and the answer from ohwilleke. May I specifically ask you, Could a reckless speech that instigates a violent riot be classified as a crime? That is, a speech with no intent to start a violent riot but the speaker recklessly ignored the imminent and likely possibility of starting of a violent riot? Or do I need to ask this in another question? Jan 15 at 18:22
  • No... This would be at best fighting words doctrin which is increadibly difficult to prove in court of law and would still carry deliberite intent. The UR example is calling a person of a certain ethnicity an appropriate slur, knowing full well that that person will punch you and start a physical fight. Again, you have to intend the fight to happen and know this will cause a fight. If you want to ask this question, feel free to link here for more in depth.
    – hszmv
    Jan 19 at 13:49
  • Interesting, I’m considering switching my vote for best answer it it lets me. Jan 20 at 19:39

By definition this is not an intentional crime or tort (i.e. civil wrong for which one can sue).

There are several standards of intent (also called mens rea) other than knowledge that one is committing a crime or intent to commit a crime, that are commonly applied to criminal offenses and torts:

  • Strict liability
  • Negligence
  • Gross negligence
  • Willful and wanton conduct
  • Recklessness
  • Extreme indifference

Strict liability would be highly unlikely to apply to unintentional encouragement of violence. Usually, in the criminal context, it applies to traffic offenses, like speeding or drunk driving defined by blood alcohol content.

Negligence is often a basis for liability in a lawsuit or for other civil remedies (e.g. cause to fire someone from their employment), but is usually only a basis for criminal liability when a death or very severe injury results (e.g. vehicular homicide) or when the circumstances are such that there is a heightened risk involved in an activity (e.g. discharging a firearm, or treatment of a small child in one's custody). Even then, for criminal law purposes, liability is usually only imposed in cases of truly "gross negligence." One could imagine highly stylized fact patterns where gross negligence encouraging violence could give rise to criminal liability (e.g. gross negligence by the commander of a military unit under military justice) but this would be a rare and exceptional situation.

Willful and wanton conduct, and recklessness, don't require actual knowledge or specific intent, but do presume disregard for objectively obvious risks. Under the Model Penal Code, this is the default standard of intent that applies when no specific standard is articulated in a statute. Unintentional but reckless conduct encouraging people to be violent might very well give rise to criminal liability.

Extreme indifference (also sometimes called deliberate indifference) is an extreme form of recklessness in which one acts with total disregard for the consequences when one clearly knows or should know that serious consequences are almost certain, even if the precise consequences to whom or what are not known. This level of intent is often treated as equivalent to intentional conduct and would often give rise to criminal liability.

There are many potentially relevant federal and state statutes that could apply, but this is the general lay of the land regarding unintentional conduct.


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