Copycat-Inspiring Speech:

A reader asks,

Could NBC News be held liable for distributing Cho's multi-media manifesto because it inspired copycats? Cho made reference in his manifesto to the Columbine murderers. If a subsequent mass murderer copies elements of Cho's manifesto in his own actions, could a parent successfully bring a wrongful death action against NBC News for distributing the manifesto that incited the subsequent murderer? Does it matter that Cho sent the manifesto to NBC News precisely so that it would distribute it and so to speak inspire others?

Lower courts have dealt with quite a few lawsuits over crimes that seem to have been stimulated by broadcasts; all the courts have rejected the liability claims, some based on general tort law principles and some based on the First Amendment. The courts have taken the view that speakers could generally be punished for the crimes that the speech they communicate inspires only if they fit within the "incitement" exception — if their speech was intended to and likely to cause imminent illegal action. The murderer's manifesto is unlikely cause imminent illegal action (courts do take the imminence requirement seriously), and in any event NBC surely did not intend for it to have such an effect (courts rightly require evidence of the broadcaster's purpose to stimulate illegal action, and not just recklessness or negligence about such action).

The suits have generally been based on copycats inspired by fiction, not by criminals' manifestos, but that shouldn't change the results. The First Amendment value of the manifestos — providing a possible perspective on the criminal's personality — is at least the same as the First Amendment value of fiction. It may well be that as a matter of journalistic ethics, the media shouldn't have broadcast the manifesto because its value in providing the perspective is too modest given the risk that it poses; but the First Amendment value does exist, and given that value, the courts have held that media can't be held liable for copycat crimes.

The reader goes on to ask,

Would the government have a right to suppress a broadcast of the Cho manifesto, in whole or in part, if it seemed highly probable that it would inspire copycats? It seems to me that the government would have to show that copycats arise in most widely-reported cases, and that information/images found only in the manifesto — rather than something else — is what would inspire a copycat.

I don't think the government may accomplish this through legislation (even under the somewhat more relaxed standards applicable to over-the-air broadcasters) any more than through the tort system. Speech generally can't be restricted on the grounds that it persuades people to act violently, unless it fits within the narrow incitement intent-likelihood-imminence framework I mentioned above.

Some could argue that the Court should essentially carve out a new First Amendment exception under the so-called "strict scrutiny" test, which in theory lets the government ban even speech that has First Amendment value, and that doesn't fit within any of the existing exceptions, if the ban is "narrowly tailored" to a "compelling government interest." But this scrutiny of content-based speech restrictions has been, to adapt Gerald Gunther's words, "strict in theory [but] fatal in fact" in virtually all instances, and I think that's good, or else the doctrine would justify restricting a very wide range of speech. It seems to me that, whatever the harm of broadcasting such manifestos, the harm of allowing the government to suppress dangerous speech — despite the perspective that the speech might provide on a tremendously important issue (how we can deal with violent madmen) — is even greater.