Speech and blame-shifting

There is a high burden to holding speakers liable for misconduct by others--absent some agreement or conspiracy, there must be intent that listeners engage in unlawful conduct and temporal imminence between the speech and the unlawful conduct. In part this is about freeing speakers to use rhetorical hyperbole and to be "vehement, caustic, and sometimes unpleasantly sharp." It also frees speakers to speak without fearing liability because of the actions of the lowest-common-denominator listener. And it places the blame on those who engage in misconduct--where it belongs--and removes (or at least limits) the option of excusing action by blaming the speech one heard.

We saw this in efforts in the '80s and '90s to regulate pornography on the ground that it conveyed messagess about sex and women, signaled to viewers that it was ok to sexually assault women, and even planted ideas in viewers about whether and how to engage in sexual assault. The arguments against those efforts raised this LCD issue--we do not set legal rules for the LCD (even in those areas without the shadow of the First Amendment) and we should not give those who engage in unlawful actions an excuse for those actions. More recently, we saw this in litigation against activist DeRay Mckesson attempting to hold him liable for negligence arising from violent actions by an unknown person during an anti-police-violence demonstration that Mckesson organized.

I am reminded of this in stories about Capitol Insurrection defendants (here is the latest) attempting to excuse themselves from pre-trial confinement and (presumably) ultimate conviction by insisting they were duped or manipulated by the speech of Q-Anon, Donald Trump, NewsMax, and a host of other speakers and platforms spreading lies about the election and the opportunity to rise above "his ordinary life to an exalted status with an honorable goal." They were helpless against the onslaught of lies, but their eyes are now open, thus they no longer are a threat to the public and not bad people who did bad acts deserving of punishment.

"The devil made me do it" is too pat. Even if one accepts (as I do not) that Brandenburg's requirements are too high and that it should be easier to impose liability on speakers, I think we can agree that the person whose actions cause an injury is more culpable than the speaker and should not be able to use bad speech and bad speakers to excuse or reduce the consequences of his misdeeds.