Is Incitement to Riot a Crime?

Walter Block writes “Suppose that Green exhorts a crowd: ‘Go! Burn! Loot! Kill!’ and the mob proceeds to do just that, with Green having nothing further to do with these criminal activities. Since every man is free to adopt or not adopt any course of action he wishes, we cannot say that in some way Green determined the members of the mob to their criminal activities; we cannot make him, because of his exhortation, at all responsible for their crimes. ‘Inciting to riot,’ therefore, is a pure exercise of a man’s right to speak without being thereby implicated in crime.”

Furthermore, Walter writes “On the other hand, it is obvious that if Green happened to be involved in a plan or conspiracy with others to commit various crimes, and that then Green told them to proceed, he would then be just as implicated in the crimes as are the others…”

According to Walter, exhorting a crowd that does what one exhorts differs from quietly sitting around a table, planning a crime and then ordering it done. What’s the difference, I ask? The level of one’s voice in the room vs. the open air? The calm calculation in the room vs. the emotion outdoors? The size of the group around the table vs. the size of a crowd? Knowing the people around the table vs. not knowing everyone in the crowd? The freedom of the people around the table to adopt the course of action vs. the freedom of those in a crowd? The formulation of a plan vs. the instructions to go burn, loot and kill?

I for one see no difference. I think a distinction is being drawn without a difference. Someone who exhorts a crowd has a plan and is articulating it. He has a goal as much as someone in a room planning to rob a bank. Gang members are just as free to follow orders as are crowd members, assuming the leader is not threatening them. And if he does threaten them, that tells us is that the gang leader and his gang are one and the same; this premise denies the analogy which requires a conspiracy.

Let’s compare the current U.S. law 18 U.S. Code § 2102: “(a) As used in this chapter, the term ‘riot’ means a public disturbance involving (1) an act or acts of violence by one or more persons part of an assemblage of three or more persons, which act or acts shall constitute a clear and present danger of, or shall result in, damage or injury to the property of any other person or to the person of any other individual or (2) a threat or threats of the commission of an act or acts of violence by one or more persons part of an assemblage of three or more persons having, individually or collectively, the ability of immediate execution of such threat or threats, where the performance of the threatened act or acts of violence would constitute a clear and present danger of, or would result in, damage or injury to the property of any other person or to the person of any other individual.

“(b) As used in this chapter, the term ‘to incite a riot’, or ‘to organize, promote, encourage, participate in, or carry on a riot’, includes, but is not limited to, urging or instigating other persons to riot, but shall not be deemed to mean the mere oral or written (1) advocacy of ideas or (2) expression of belief, not involving advocacy of any act or acts of violence or assertion of the rightness of, or the right to commit, any such act or acts.
(Added Pub. L. 90–284, title I, § 104(a), Apr. 11, 1968, 82 Stat. 76.)”

The law distinguishes inciting to riot from advocacy of ideas and expressions of belief that do not advocate violence or say that acting violently is right. This distinction is tenable, wise and good. An exhortation to burn, loot and kill is against this law. Furthermore the definition of riot mentions clear and present danger, the presence of three or more persons (a crowd), and the ability of immediate execution of threats. These all are reasonable components of the legal definition.

Murray Rothbard defined aggressive behavior in terms of literal physical behavior. This has definiteness. Walter continues this work. It has the obvious limitation that it disregards cases like inciting to riot, which are very real cases of social misbehavior and harm in which people and property can be destroyed because people listen to orators and are encouraged to act violently. Does not a man bear a responsibility for what he says? He does, but to acknowledge that this is so makes analysis difficult because lines have to be drawn for different kinds of verbal behavior. Different societies draw these lines in different ways. The clarity of deciding the issue on physical behavior grounds disappears and is replaced by the detailed thinking of jurists and justices who weigh the matter and attempt to codify it.

I may believe that incitement to riot properly defined and delimited is a crime, but I may also believe that it is no aggression or microaggression to use the term “mother” if that insults someone’s notion of a sexist remark. That’s because the injury done in a riot refers specifically to either the person (meaning his body) or to his property. It doesn’t refer to taking umbrage or having one’s feeling hurt or some such ill-defined, unmeasurable and unobservable harm. The statute has done a decent job of defining the aggression (riot) in terms of actual damage. Rothbard would be pleased at this much of it. All that’s required is to prove a connection between the incitement to riot and the riot, that is, to prove that the riots were instigated by the speaker’s remarks or that the speaker had a direct role in making the riot happen.

We cannot bridge the gap between physical attacks and verbal encouragement and instigation. The question is whether or not it’s sensible to limit crimes to physical attacks. We need to evaluate the worth of sticking to physical aggression and eliminating the harder cases like inciting to riot. If a man urges a crowd on to kill, and they follow and do just that, we cannot deny that “to urge” and “to follow” have meaning. Sure, the crowd is “free” to follow or not, but if they choose to follow, why should we ignore that there has been a direct human influence on their decision to burn, loot and kill? Just because there is no direct physical connection doesn’t mean there hasn’t been a connection made. Cause and effect operate at a distance too. Acting man, in the Mises sense, is not an isolated entity. He is responsible for his acts and decisions but he’s not isolated from the influences he’s immersed in. He has the ability to make decisions, but what he decides and thinks is most definitely influenced by others and includes what they say.

If we want to be libertarian purists, we can even argue that the speaker did set molecules in motion that went into the ears and brains of rioters and caused them to act violently.

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