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Comment by hackermatic | Hacker News Reader

At what point do outlets like Libs of TikTok become guilty of incitement? There's a documented history of that and other outlets turning the spotlight on a person, school, or hospital, consistently followed shortly after by bomb threats, doxxing, and other harassment. That would seem to meet the standard of "incitement to imminent lawless action" under US free speech law [0], especially since callouts-then-threats seems to have become a self-replicating meme in our society.

[0] https://mtsu.edu/first-amendment/article/970/incitement-to-i...

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It fascinates me that the "censorship" of "kiwi farms" drew more than 400 outraged comments yesterday lamenting the loss of free speech, while stuff like this barely gets any attention here at all.

It's no surprise in the tech circle to pay more attention to Hurricane because we know how very, very easily such IP blocks can spread. KiwiFarms and 8chan today, blogspaces that happen to be critical of [insert political topic here] tomorrow.

But of course, this current topic is abhorrent and I hope the authorities throw the book at the instigators. There's way too many school shootings in the US to play this off as "trolling".

Simply calling attention to or criticizing people doesn't meet the standard for incitement to violence, and it only takes a moment's thought to understand why someone who isn't calling for violence cannot be held responsible for the actions of the violent fringe.

This is the same reason that people who criticized Brett Kavanaugh's appointment and jurisprudence are (rightly) not held responsible for the man who was arrested outside his home for attempting to assassinate him.

One difference here is that lots of people criticized Brett Kavanaugh while one individual undertook to commit violence against him (before turning himself in when he arrived at his destination; his case is still pending: https://en.wikipedia.org/wiki/Brett_Kavanaugh_assassination_...).

In contrast, a Twitter account with a lot of followers that has a habit of calling out specific people/institutions for being 'woke' has a following that has yielded multiple different bomb threats over the last couple of years; I think this is the 9th or 10th such incident, with many more incidents of general harassment (about 60). If it's happening so frequently that it becomes predictable one wonders why the person in question hasn't made any effort to dissuade followers from engaging in such activity.

That's my core question, and I am honestly curious about it: Aside from whether someone is intending to incite action (although I think a lot of these accounts are), at what point are they obligated to limit their free speech because someone else will more-or-less-reliably be incited by it? Is there any US jurisprudence around that question already?

- "consistently followed shortly after by bomb threats, doxxing, and other harassment"

And what on Earth do you think the KKK was? The very case law you're citing [0] secured their rights to hold white-supremacy rallies. LibsOfTikTok (probably) doesn't meet that standard either, and that shouldn't be even slightly surprising. Glorifying, advocating, inspiring actualized violence — like both the KKK and these people have done — don't pass the Brandenburg bar. "Directed towards" and "imminent" are key tests. Those are not present (I'm not familiar with what these hate groups say; I'm drawing inference from the choice of phrasing you used to describe it, "turning the spotlight on". That is not Brandenburg incitement).

[0] https://mtsu.edu/first-amendment/article/970/incitement-to-i...

I figured the difference is that the KKK rally was "just" a rally with no other immediate actions associated to it, while in this case, there is a pattern of callout videos or tweets that immediately inspire someone to call in a threat.

- "inspire someone to"

I get the impression your own choice of phrase shows you believe this isn't direct incitement.

(What more is left to say? Incitement is a thing where substantial culpability falls on the speaker telling the hearer to do something. If it's the hearer's own idea, their inspiration, to break laws, the speaker is not culpable for that).

I wasn't trying to be cute or anything -- I wasn't sure whether incitement legally has to be a direct suggestion like "You should call in a bomb threat against this library", or whether something like "This library has groomer books and someone should do something" would count if the person saying it can reasonably expect it would lead to a bomb threat based on past behavior, and says it anyway.

I do still want to find out whether there is a separate legal concept for that kind of indirect encouragement or negligence (depending on the intent of saying it anyway).

- "I do still want to find out whether there is a separate legal concept for that kind of indirect encouragement or negligence (depending on the intent of saying it anyway)."

That's the main relevance of Brandenburg: that ruling decided that things that fall short of its test are constitutionally protected free speech. It holds [0] "speech advocating illegal conduct is protected under the First Amendment unless the speech is likely to incite “imminent lawless action.”". That's the answer to your "indirect encouragement or negligence" question: if it encourages violence, and if it falls short of Brandenburg's test, then it is lawful. Encouragement or advocacy of violence is generally lawful.

[0] https://www.mtsu.edu/first-amendment/article/189/brandenburg...

If there's a history of such speech inciting imminent lawless action, then can't we say that such speech incites imminent lawless action?

So if you have a forum, where certain kinds of statements on that forum usually/often cause very quick lawless action, can't you say that such statements on that forum are not constitutionally protected free speech?

Or is that not a valid application of Brandenburg?

All absolutely correct, but the other poster has a point. It kinds depends on how one reads 'likely'. A rudimentary analysis from year suggested that that the probability of harassment (not all of which would be illegal) following tweets about specific institutions is in the 20-25% range: https://rpubs.com/TaskForceButler/984347

The probability of actual criminal threats is much lower, perhaps 3-5%. My understanding that LibsofTiktok has a little over 1m followers, but plenty of e-celebs have comparable followings without being associated to such problematic behavior.

- "It kinds depends on how one reads 'likely'."

Well, I understand it's "directed to... and likely to...", and that first test is necessary. Rhetoric that isn't directed towards causing lawlessness, but has a tendency to do so anyway, is protected.

I have a feeling that part of the problem (i.e, why LoTT are allowed to continue doing their thing) is that there isn't any explicit incitement. It's just sort of implicitly understood by the audience that, if there's a post about some specific entity, that's an invitation to harass them. This isn't a situation which the law currently handles effectively.

There is no anti-memetics division... But lordy do we ever need one!

At some point containment & prosecution becomes necessary, yes. But I keep wanting some better civilizational defenses, some visible strategies to de-de-program. Advocacy for stability, concerted & highly visible cries against extremism.

It's such a difficult issue to deal with this propaganda because it's so eagerly received, is such a hyperreal system that's bought into & is so engrossing.

There's other points in history where dialectic broke down, where communication was impossible. I don't know a ton about the one, but the Know Nothing Party had similar characteristics: an inability to be engaged with, an unshakeable confidence by way of being utterly detached & non participatory.

I hadn't heard of this account before so I went and looked into them. What are they doing that any other journalist isn't doing?

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