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Wednesday, March 12, 2014

"The Silver Bullets Are Coming"

A forthcoming piece of mine focuses on what I call First Amendment “audience analysis”—that is, courts’ determinations of how audiences process speech.  When the government seeks to regulate speech based on its content, it generally does so on an assumption that listeners will process the speech in a manner that produces social harm.  And because the chain of causation for such speech-based harm runs through the filter of an audience, courts must constantly make judgments regarding the audience’s reception of such speech.  A few scenarios that I think touch on some of the fundamental questions underlying this issue (the first two are actual cases, the third a variation of the famous Skokie case):

- An FBI agent, after conducting a criminal investigation based on a man’s complaint, concludes that the record does not support a prosecution (a decision that the man protests).  Three months later, the man leaves the following voicemail for the agent, which frightens the agent and leads to an indictment for threatening a federal officer: "Hope things are well, hope you had an enjoyable Easter and all the other holidays since I’ve spoken with you last. I want you to look something up. It’s known as misprision. Just think of it in terms of misprision of a felony. Hope all is well. The silver bullets are coming. I’ll talk to you. Enjoy the intriguing unraveling of what I said to you."

- Randi sues the publisher of a nonfiction book for libel, based solely on the following sentence: “Maria was eager for news from Randi about a junkie they both knew who was doing time in prison.”  She argues that the passage "falsely accuses her of criminality or associations with criminals."

- A neo-Nazi organization holds a rally in a town full of Holocaust survivors.  One of the speakers, after praising the policies of the Third Reich, looks out into the crowd and expresses the organization’s desire to “finish the job the Nazis started.”  The speaker is charged under a criminal statute prohibiting true threats.

For present purposes, let's set aside any additional doctrinal issues, such as questions of intent or the constitutional value of the speech in question.  I'm interested in the basic question of how courts, in determining the extent to which speakers should be held responsible for the harmful consequences of their speech, ought to evaluate the ways in which audiences process speech.  Should the guiding principle be how an idealized, “rational” audience should process the speech?  Or merely a best-guess prediction as to how the actual targeted audience would likely process the speech--even if this may be "irrational” in an abstract sense?  And how much weight should be attached to the fact that, say, the FBI agent or Holocaust survivors actually understood the statements to be a threat?  What do people think?

Posted by David Han on March 12, 2014 at 02:45 PM | Permalink


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Interesting project, David. It connects closely with the debate about the "endorsement test" -- and about the "rational observer" mechanism that is used to identify the "messages" that various actions and symbols convey -- in the Religion Clauses context.

Posted by: Rick Garnett | Mar 13, 2014 10:16:10 AM

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