On June 28, Jarrod Ramos — a deranged man with an ongoing legal feud against The Capital Gazette (long predating the Trump presidency) — opened fire in the newsroom of the small Maryland newspaper, killing five innocent people.
Not surprisingly, in an orgy of confirmation bias, a few journalists could not wait to blame President Trump. In their minds, Trump’s bombastic attacks on the legitimacy of the media (“enemy of the people” and “fake news”) was blamed for “creating the atmosphere” or “normalizing” violence, particularly against the press.
The bodies of those murdered were not even cold when Reuters editor Rob Cox published a tweet declaring that “President Trump has blood on his hands.” To Reuters’ credit, Cox was publicly reprimanded by Reuters executives for violating journalistic principles, but by then tens of thousands had repeated the canard.
On the very same day of the newspaper shooting, and after White House spokesperson Sarah Huckabee Sanders was hounded out of a Virginia restaurant for her political views, Representative Maxine Waters held a much-publicized rally where she encouraged the belligerent harassment of government officials in their private time and at their homes, chanting “No justice, No sleep.” Conservative activist group Judicial Watch filed an ethics complaint against Waters, alleging that she incited mob violence and used her “power and position to attack and incite violence against Trump cabinet members.”
After Waters’ angry call to action, a 16-year-old boy wearing a MAGA hat was assaulted by an angry man in a San Antonio restaurant, who ripped the cap from the boy’s head and threw a drink on the boy, inexplicably calling the young man (who is white) “n*gger” on his way out. The suspect, Kino Jimenez, has a history of leftist engagement on social media. On July 7, Martin Astrof of Long Island, N.Y. was arrested after storming into a Republican Congressman’s campaign headquarters and threatening to kill supporters of President Trump and the Congressman. According to police, “After threatening to kill the campaign worker and other [Trump] supporters, Astrof backed his car up in an aggressive manner nearly striking the worker.”
Ours is poetic license, theirs is a threat
Observers and partisans on both sides of the aisle insist that their vocal opponents are responsible for these actions. Thousands of Facebook and Twitter postings continue to propagate the meme, and both Trump and Waters have doubled down on what their opponents call “incendiary” speech. Not surprisingly, each side claims that when they use graphic language, it’s merely a rhetorical device. In June of 2008, then-candidate Obama told a crowd that “if [Republicans] bring a knife” to a fight, [Democrats] should “bring a gun.” (FUN FACT: MSNBC’s Tamron Hall denied on-air that Obama had ever said that, but even the leftist fact-checking site Snopes confirmed it was true.)
I don’t think any reasonable person believed that Obama was encouraging armed violence. Just this week, The New York Times’ editorial board invoked violence-as-a-metaphor, calling upon “Democrats and progressives to take a page from The Godfather and go to the mattresses” to stop the president from succeeding in selecting a Supreme Court justice. “Going to the mattresses,” of course, is a reference to one of that film’s dramatic arcs of open warfare. Were Times editors (none of whom own “assault weapons,” I’m quite sure) warning Trump supporters to be careful at toll booths?
Blaming the speaker: look to the law, not feelings
I was a journalist for 16 years before studying law, and the bulk of my legal work has been to protect and defend journalists around the world and the right of the press to seek truth and report it. For that reason, I can understand the anger or resentment that many feel when the president calls the media “the enemy of the people.” After the Annapolis shootings, Lucy Dalglish, Dean of the University of Maryland Philip Merrill College of Journalism, “pleaded with viewers and readers around the world not to view journalists as the enemy of the people” in a television interview. Hinting at a link between Trump’s bloviating and the violence at The Capital Gazette, Dalglish told USA Today that “We will never know whether, if our nation’s public discourse had not gotten so poisonous, this man [Ramos] would have felt that he could just act with impunity […] But I can’t help but think that the nastiness from the top hasn’t helped.”
As a reporter, I worked alongside Dial Torgerson and Olivier Rebbot who gave their lives reporting from combat zones. As a journalist, I’ve been threatened, and I’ve been shot at. I get it. But anger and resentment are feelings, not the intelligent analysis of law and history required to determine public policy, and certainly not a meaningful basis upon which to justify restrictions or distorted curtailment of our First Amendment freedoms.
A common thread runs through cases where speech is blamed for violent actions, namely, that the violent actor was allegedly impelled or somehow driven to a heinous act by the “inciteful” words of others. While we can talk for weeks about whether such claims strip away moral agency and individual responsibility, we can learn much more from the jurisprudence of what I call “blame the speaker” cases.
Almost all of these cases involve a tragic death. In 1984, 19-year-old John McCollum had been listening to Ozzy Osbourne’s “Suicide Solution” the night he committed suicide with a .22 caliber handgun. His parents filed suit, claiming that it was criminally negligent of Osbourne and his record label to release the song. The suit claimed that the parties acted irresponsibly because they released the track “with the knowledge that such [a song] would, or at the very least, could promote suicide.” In Davidson v. Time Warner, the tragic facts involved a police officer who pulled over a thug in a traffic stop. The thug murdered the police officer, whose family in turn sued Tupac Shakur and Warner Bros. records because the murderer had been listening to Shakur’s music that allegedly glorified violence against police.
In both cases the plaintiffs lost because the cases failed basic principles of tort liability. If we substitute Donald Trump for Ozzy Osbourne, or Maxine Waters for Tupac Shakur, would the same results obtain?
Wanted: context, proximity and causation
To try get a better understanding of what the law requires to hold speakers responsible for the violent acts of others, I interviewed Tom Leatherbury, an attorney at Vinson & Elkins in Dallas who has litigated these kinds of cases. One of the nation’s premier First Amendment specialists, Leatherbury successfully defended the Boy Scouts of America (the publisher of Boy’s Life magazine) who along with the National Shooting Sports Foundation and Remington Arms were sued in Way v. Boy Scouts of America. That case saw the parents of a 12-year-old killed in a gun accident blame Boy’s Life for the death because the magazine had run a special advertising section promoting sport shooting (and shooting safety) that they felt was “responsible” for the tragic accident. At bottom, the theory was that the magazine “put the idea into the boy’s head” that he should play with rifles.
Leatherbury is a proud Democrat, has given much of his time pro bono to various civil rights groups and might be described politically as a classical liberal. Still — and perhaps swimming against the stream of his political comrades — Leatherbury explains how the fundamentals of law make holding a speaker responsible for the actions of others to be a potentially dangerous fallacy with unforeseen consequences.
“In tort law,” explains Leatherbury, “holding a speaker responsible for the actions of a listener requires proving several elements. To begin with, there has to be some form of duty between the two. Then, there must be proof that the duty was breached, and that there was a causal link between the alleged breach and the action.” For purposes of our discussion, we assumed the “duty” arguendo because one might argue that an influential figure like Trump or Waters enjoy positions of influence. But in determining whether that hypothetical duty was breached, Leatherbury explains the elements that determine responsibility, namely “foreseeability” and whether or not a breach of the assumed duty is counterbalanced by a “risk/utility” analysis.
Foreseeability comes down to immediacy and context, says Leatherbury. “The dividing line seems to me to be one of immediacy. We would have to apply a sort of ‘clear and present danger’ test.” In other words, it’s not enough that a speaker “ought to” know that some unknown person miles away and days later would be “inspired” by the speech. “The question for liability,” says Leatherbury, “is whether the words would immediately incite a violent act.”
There was no proof at all that Ramos was inspired by (or even heard) Trump’s “enemy of the people” routine, and so much time had passed between Trump’s rhetoric and the Annapolis shooting that causality (absent an admission) could never be proved. There is also a connection between immediacy and proximity. Justice Holmes’ famous dictum about shouting “Fire!” in a crowded theatre underscores what’s missing here: the farther away in time and place between the speaker and the action, the more tenuous the connection. Put another way, Ramos was not in a theatre where Trump was on stage. The best critics can point to is “atmosphere.” Dalglish and others are entirely correct from a moral standpoint in describing the atmosphere as “toxic” or even “harmful” but those are feelings, not facts.
Even if foreseeability and proximity could be shown, Leatherbury points out the truly hard part of proving negligent publication, namely, whether the speech in question passes a risk/utility balance. “The Trump and Waters statements are at their core political speech,” Leatherbury explains, “and given the constitutional protection given to political speech, particularly hyperbole and rhetoric, the utility bar is pretty high.”
“Aha!” exclaims the would-be censor. Trump’s speech has no social value! He’s a Nazi! He doesn’t deserve to be heard! Leatherbury (who is by no means a Trump supporter) counters these arguments by reference to the core of the First Amendment. “The First Amendment protects the lowest common denominator in speech. There are many cases where vile, nasty, offensive speech has the right to be heard. Moreover, the fact that we all know that there are nuts out there,” says Leatherbury, “can’t possibly create a duty of public officials not to speak for fear of an unknown assailant. Political speech of all kinds would essentially be shut down.”
As a cautionary note, Leatherbury adds that holding speakers responsible for the actions of others can’t be viewpoint selective. “In applying restrictions to speech, we have to be principled. We have to live with results we don’t like. What applies to the goose has to apply to the gander. Instead of trying to silence speech — even odious political speech — our duty and the appropriate remedy is in voting, speaking out and organizing.” Without viewpoint neutral application, Gregory Johnson’s burning an American flag, or Paul Cohen’s wearing a jacket with the expletive “F*ck the Draft” might be held just as responsible for an “offended” person shooting up an ACLU office.
To me, there is a great degree of hypocrisy (if not tone-deafness, to be more generous) on the part of the Times’ editorial board using a mob-violence reference to encourage voters to resist Trump. Remember, this is the same outfit who strongly hinted — wrongly — that Sarah Palin’s alleged use of “target” campaign graphics was responsible for the shooting of Representative Gabby Giffords. It’s a telling sign of arrogance to assume that “our” readers understand literary allusion and metaphor (certainly then-Senator Obama couldn’t possibly have meant “bring guns” to political rallies) but that conservatives or voters in a Red State are too feeble-minded and simplistic to apply the same reasoning. But after all, goes their reasoning, what do you expect from people who cling to their guns and bibles?
Charles Glasser (@MediaEthicsGuy) was a journalist in the 1980s and later studied at New York University School of Law. After several years as a First Amendment litigator, he became Bloomberg News’ first global media counsel. He is the author of “The International Libel and Privacy Handbook”, teaches media ethics and law at New York University and also lectures globally and writes frequently about media and free speech issues for Instapundit and other outlets.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.