McMaken: Incitement Is Not A Real Crime

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by Tyler Durden
Thursday, Feb 04, 2021 - 20:00

Authored by Ryan McMaken via The Mises Institute,

Former president Donald Trump has been impeached for “incitement to insurrection.” The House Democrats’ claim is that Trump made an inflammatory speech which - a week later - led to the Capitol riot of January 6.

The Senate is now considering whether or not to convict Trump of this “crime.”

I put “crime” in scare quotes for a couple of reasons.

The first reason is that the impeachment proceedings aren’t a criminal trial, so even conviction wouldn’t establish guilt the way an actual criminal court might. Contrary to what the public thinks—with its third grade–level understanding of American politics—and what the media is happy to imply, impeachment is strictly a political process that does nothing more than remove a person from office. The Democrats’ new interpretation that impeachment can be used to bar someone from holding office in the future is a rather novel approach.

Moreover, it’s already clear that if Trump were being tried in an actual criminal court, it is extremely unlikely a prosecutor could get a conviction. Trump’s alleged incitement doesn’t meet the legal requirements for such a charge as set out by the US Supreme Court back in 1969. An incitement conviction would require prosecutors to show there was an imminent threat of violence from the inflammatory remarks. Clearly, the Capitol riot, occurring a week later, was not “imminent,” and in a criminal case, it would be nearly impossible to prove this was directly connected to a political speech made days earlier.

The second reason “crime” needs to be in scare quotes is because incitement isn’t a real crime at all. It assumes that the person committing the “incitement” is simply passing down orders to blank-slate automatons who then turn around and do whatever their “leader” says.

In fact, the only people guilty of rioting are the rioters.

Rothbard spelled this out several times.

For instance, in an essay written for a small newspaper in the late 1960s, Rothbard explains the problem with claiming incitement is a real crime:

Suppose that Mr. A tells Mr. B: “Go out and shoot the mayor.” Suppose, then, that Mr. B, pondering this suggestion, decides it’s a darn good idea and goes out and shoots the mayor. Now obviously B is responsible for the shooting. But in what sense can A be held responsible? A did not do the shooting, and didn’t take part, we will assume, in any of the planning or executing of the act itself. The very fact that he made that suggestion cannot really mean that A should be held responsible. For does not B have free will? Is he not a free agent? And if he is, then B and B alone is responsible for the shooting.

If we attribute any responsibility at all to A, we have fallen into the trap of determinism. We are then assuming that B has no will of his own, that he is then only a tool in some way manipulated by A.

Now, if Person A participated in the planning of a riot or a murder, then Person A is guilty of conspiracy, not incitement. But Person A is not guilty of anything for have merely suggested to Person B that he shoot the mayor. Person B, after all, is responsible for his own actions.

Rothbard continues:

if the will is free, then no man is determined by another; then just because somebody shouts “burn, baby, burn,” no one hearing this advice is thereby compelled or determined to go and carry the suggestion out. Anybody who does carry out the advice is responsible for his own actions, and solely responsible. Therefore, the “inciter” cannot be held in any way responsible. In the nature of man and morality, there is no such crime as “incitement to riot,” and therefore the very concept of such a “crime” should be stricken from the statute books.

Finally, Rothbard notes that incitement laws are also damaging because they are a direct attack on the natural right to free speech:

Cracking down on “incitement to riot,” then, is simply and purely cracking down on one’s natural and crucial right to freedom of speech. Speech is not a crime. And hence the injustice, not only of the crime of incitement, but also of such other “crimes” as “criminal sedition” (sharp criticism of the government), or “conspiracy to advocate overthrow of the government”—in other words, planning someday to exercise one’s basic and natural right to freedom of speech and advocacy.

A decade later, Rothbard emphasized the importance of rejecting the notion of incitement as a crime in his book For a New Liberty. Under the section titled “Freedom of Speech,” he writes:

What, for example, of “incitement to riot,” in which the speaker is held guilty of a crime for whipping up a mob, which then riots and commits various actions and crimes against person and property? In our view, “incitement” can only be considered a crime if we deny every man’s freedom of will and of choice, and assume that if tells and C: “You and him go ahead and riot!” that somehow and are then helplessly determined to proceed and commit the wrongful act. But the libertarian, who believes in freedom of the will, must insist that while it might be immoral or unfortunate for to advocate a riot, that this is strictly in the realm of advocacy and should not be subject to legal penalty.

Later, in his book The Ethics of Liberty, Rothbard again makes very similar remarks:

Suppose that Green exhorts a crowd: “Go! Burn! Loot! Kill!” and the mob proceeds to do just that, with Green having nothing further to do with these criminal activities. Since every man is free to adopt or not adopt any course of action he wishes, we cannot say that in some way Green determined the members of the mob to their criminal activities; we cannot make him, because of his exhortation, at all responsible for their crimes. “Inciting to riot,” therefore, is a pure exercise of a man’s right to speak without being thereby implicated in crime. On the other hand, it is obvious that if Green happened to be involved in a plan or conspiracy with others to commit various crimes, and that then Green told them to proceed, he would then be just as implicated in the crimes as are the others—more so, if he were the mastermind who headed the criminal gang. This is a seemingly subtle distinction which in practice is clearcut—there is a world of difference between the head of a criminal gang and a soap-box orator during a riot; the former is not, properly, to be charged simply with “incitement.”

This problem is related to a similar problem: making noncrimes like slander (i.e., defamation) into prosecutable offenses. A “slanderer” can say all sorts of things. And, indeed, a respect for freedom of speech dictates that we allow him to do so. After all, the people who hear what he has to say remain completely free to come to their own conclusions about what to do with that information. Just because some person says “your sister is a whore,” doesn't mean we are required to believe him or act on those words in any particular way.

In practice, laws against incitement and defamation are very dangerous to basic human rights, and both place nonviolent people in legal jeopardy merely for the “crime” of expressing opinions. These laws are direct attacks on the right to free speech. In the case of Trump and “incitement,” he expressed an opinion about the election and encouraged people to “fight like hell” in a vague, nonspecific way. If this sort of thing is “criminal” then anyone who expresses an opinion that people should “resist” or “fight” against the regime—or even suggest that the regime is illegitimate or worthy of contempt—is likely to find himself on trial any time one of his social media “friends” decides to deface a government building or throw a rock at a cop.