Victims of online, right-wing terrorism may finally be able to sue the people who perpetrate it

One of the more disturbing— but increasingly common— behaviors of the political right is its practice of cleverly goading and inciting violence towards other Americans. I say “cleverly” because they do this in full awareness of the potential consequences, but believe themselves to be untouchable, because they are online and usually anonymous.

These implicit, “winking” appeals to violence have recently been employed by the right in public settings — such as campaign speeches — where a speaker demonizes certain groups or individuals without ever explicitly urging that they be harmed or killed. Donald Trump himself elevated this type of malevolent rhetoric to an art form when he deliberately demonized individuals and ethnic groups, often resulting in harassment and death threats against those same individuals (and often their families). His son, Donald Trump Jr. recently staged a video of himself at a shooting range with Missouri Senate candidate Eric Greitens in which the two of them fired automatic weapons at targets while voicing threats against “liberals.”

With these public models to inspire them and the anonymity afforded by the internet, it’s hardly surprising that purveyors of online hate speech have metastasized to the point where the encouragement of violence in rightwing online forums is now normalized. Up to this point, few people have suffered any consequences for the harm their “ free speech” might inflict on others.

That may be changing. One of the time-tested axioms in law is that there should be “no wrong without a remedy.” And legal practitioners fed up with the reckless disregard now exhibited (mostly) by the right, routinely putting other peoples’ lives at risk through this spew of untrammeled hate speech, are beginning to respond to this threat by laying the groundwork for new legal causes of action to hold such terrorists (for that is exactly what they are) accountable to those they harm through their exhortations to violence.

Jane Bambauer is a professor of law at the University of Arizona. In an article written for Lawfare, she explains why a variation on current common law jurisprudence should be adapted to the necessities of hate speech as it exists in the modern digital age. That article dovetails with a law review article she co-wrote which will be published in the influentialHarvard Journal of Law and Technology.

The abstract of that article, titled Reckless Associations, explains why such an adaptation of the law is necessary in light of what we have witnessed developing over the last five years:

This Article provides a theoretical foundation and practical guide for a new form of liability that has proven necessary in the Internet era: the tort of Reckless Association. This tort would hold de facto leaders of informal networks responsible when radicalized members of the network cause physical harm to others. Recent prosecutions of the leaders of the Oath Keepers and other white supremacists who organized the Charlottesville protest, and rumblings of a similar prosecution against Donald Trump, demonstrate that there is a public appetite for this form of legal responsibility. To date, these prosecutions proceed on theories of incitement or conspiracy, but those doctrines are poor fits for cultural leaders, like Trump, whose media habits have created a drumbeat for increasingly paranoid thinking and action while also studiously avoiding making discrete statements that fit the heightened requirements of incitement.

In her Lawfare article, Bambauer notes that current criminal law does not provide an effective remedy for the type of “at-a-distance” terrorism practiced on the internet by the Alex Jones’s, Trumps and Greitens, for example. To hold such perpetrators accountable to the people harmed by their online digital discourse, it’s necessary to adapt common law liability to encompass the “ringleaders,” as she describes them: “[T]he central figures who are the most active, trusted and influential nodes in a radicalized network should be held civilly responsible for the physical harm foreseeably caused by other individuals in their social group.”

From the law review article, Bambauer describes how this type of liability would work in practice:

As an illustration: Alex Jones could be held civilly liable for the physical harm caused by the shooting at Comet Ping Pong pizzeria if the victim, through discovery of Twitter, Facebook, and other social networking data, could show that Jones was (one of) the most influential node(s) in the shooter’s network that persistently trafficked in Pizzagate pedophile conspiracy theories. Jones would have a defense based on lack of sufficient mental state (reckless indifference) if he could show that he had made even a modest attempt to correct the record or dampen the hostility—a defense we believe he would not actually be able to muster.

As Bambauer notes, the discovery process would provide the victim of such right-wing terrorism appropriate legal tools to determine, through the perpetrators’ online metadata, a graph network identifying those radicalized individuals “who are the most connected and the most frequent contributors to the swarm of crazy-making content.” Measuring the network’s centrality could (and likely would) narrow this down to specific individuals.

The difficulty, of course, is establishing causation between these ringleaders’ conduct and the subsequent attack on the victim of violence. In Bambauer’s formulation, “liability should pass to the de facto leader only if the plaintiff can prove, by a preponderance of evidence, that the leader’s communications and activities in the social network had a true causal connection to the attack.” Bambauer suggests a Restatement (commonly used by lawyers and judges to summarize and define a specific point of law) be adopted as follows:

A defendant is subject to liability for a plaintiff if the defendant assumed a position of leadership within an association that recklessly caused a member of the association to intentionally harm the person of the plaintiff.

The legal evolution of these terms of art would be left to the common law (the bulk of Professor Bambauer’s Law Review article is devoted to the explication of these terms). Significantly, this is largely a function of state — not federal — courts, so its essential evolution would not be subject to corrupt Trump ideologues ensconced in the federal judiciary (They and their cohorts would, however, be the primary gatekeepers to its constitutionality).

Which brings us to the most difficult task: to reconcile this type of action against the activities of the perpetrators with their rights under the First Amendment, specifically their rights of free speech and association. Bambauer recognizes that her proposed framework “must exist entirely within the constraints of constitutional scrutiny, like the tort of defamation or the tort of public disclosure of private facts.”

Bambauer believes that this can be done,with an appropriate legal standard derived from existing restrictions on so-called “free speech” to protect others from harm caused by that speech:

[T]he First Amendment allows the law to penalize expression when the penalty is narrowly tailored to harm. As long as liability puts the burden on a plaintiff (who, by supposition, has already suffered physical injury) to prove causation and a reckless mental state, a new law of this sort can be reconciled with free speech precedent.

She suggests one way to overcome the “First Amendment” objection to this type of legal remedy is to analogize its elements to the “imminence” standard for restricting/penalizing potentially violence-inducing free speech already established under First Amendment jurisprudence (speech which will likely result in “imminent harm” to someone is unprotected, for example). She also makes the shrewd point that the current efforts to “censor” harmful web content by imposing legal or regulatory obligations to do so is even more “censorious” than what she proposes.

Bambauer also recognizes there are also risks of over-reaction that could chill beneficial, non-injurious speech, and that the creation of this new tort would be an invitation to intentionally frivolous (and expensive) litigious harassment, leading to self-censorship by many internet platforms out of sheer fear. To combat this, she suggests, “The tort needs to be demanding enough in terms of elements and proof so that an awareness that somebody in the network might do something violent is not enough for liability.” She uses the example of a civil rights leader whose rhetoric sparks an act of violence, even if unintended.

But it’s possible for courts to construct a tort that would be strong and clear enough to avoid negative chilling effects and First Amendment conflict. First, the elements of the tort will ensure that it is not sufficient for a plaintiff to show that a defendant has a lot of followers or creates incendiary content that gets circulated a lot. The causation and mental state requirements would reach only individuals who are persistent—who are in the ear, so to speak, of the members of their informal groups on a daily or hourly basis. This is the behavior that keeps members of a loosely affiliated group in a cycle of grievance, and it is a phenomenon unique to, or at least uniquely trackable in, networked communications..[.]

I want to emphasize that Bambauer’s Lawfare article is only a summary of her points. She and her co-writers address the potential practical and constitutional objections to their proposal at considerable length in the law review article (which I trust you will all read :). I would also suggest that despite the relative novelty of its subject matter, her analysis is quite thorough and because of that fact alone it will be well-received by a judiciary grappling with these issues.

But the bottom line is this: Every indication is that Republicans and their enablers will continue ratcheting up the violent rhetoric until someone --or more likely, several people — are killed as a clear-cut, direct consequence of the hatred they now spew with such casual impunity. We now have elected or would-be elected officials airing advertisements which tacitly or explicitly encourage the murder of their political opponents. We have organizations whose sole mission relies on the provocation of an armed, violent overthrow of our government. And in the shadows, we have a set of well-heeled provocateurs who find themselves able to gleefully skate away from their responsibility for promoting violence against people they happen to disagree with.

None of this is a joke. There’s no “privacy” or “First Amendment” interest in soliciting murder. If Republicans and their enablers want to continue down this path of advocating violence while trying to hide behind a cloak of “plausible deniability,” these types of claims will be brought. A victim of this type of “stochastic” incitement to violence— or perhaps a relative of a victim — will sue in order to ferret out those responsible and hold them liable. Another basic maxim of the law is that if there’s any possible cause of action, some enterprising lawyer will use it. Eventually, a state court judge will allow that claim to go forward.

Bambauer’s law review article concludes as follows:

It is clear enough that the radical freedom of online associations predictably causes individuals to associate in likeminded groups where peer effects and feedback loops lead to increasingly deluded beliefs. Society needs law and social norms to place responsibility for these dynamics on the set of people who can most easily monitor and avoid the problems. Contrary to popular belief, that set of people is not the executives and employees of major tech platforms. It is the users themselves—particularly the informal leaders who benefit from the fame and financial rewards of the radicalization process without shouldering any of the risk.

Anyone who continues target their fellow citizens with this type of noxious rhetoric -- and thinks they’ll just “get away with it” when someone takes their words seriously -- might want to keep that in mind.