Limiting Free Speech (31): Speech That Incites, and Teaches the Methods of, Illegal Activity

inflammatory speech, illustration by Robert Neubecker

(source)

This is a follow-up from two previous posts on the same subject (here and here).

In Brandenburg v. Ohio, the Supreme Court held that abstract advocacy of lawlessness and violence is protected speech under the First Amendment. Even in a society based on laws, people should be free to express disagreement with the law and call on others to break the law (inflammatory speech).

I think that’s generally acceptable and fair. If someone believes that smoking dope shouldn’t be a crime, and carefully describes to his or her readers how to cultivate and use the drug, then he or she should be permitted to do so. The crime is drug use, not the description of or incitement to use drugs. The same is true for a more extreme example, such as the infamous book called “The Hit Man Manual” (see the Rice v. Paladin Enterprises case).

However, it is equally acceptable, also according to Brandenburg v. Ohio, that speech which incites imminent, illegal conduct may itself be made illegal:

The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Brandenburg v. Ohio

If speech intends to produce illegal actions, and if, as a result of this speech, the illegal actions are imminent and likely, then there is a reason to limit freedom of speech. In the words of Justice Black (who was, by the way, something of a first amendment absolutist):

It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute. We reject the contention now.

When speech acts contribute substantively to criminal acts, the speech acts are considered to be “aiding and abetting”.  The fact that ”aiding and abetting” of an illegal act may be carried out through speech is no bar to its illegality. (source)

The justifications for free speech that apply to speakers do not reach communications that are simply means to get a crime successfully committed. K. Greenawalt in “Speech, Crime, and the Uses of Language”

Aiding and abetting a crime can be criminal in itself, even if it takes the form of the spoken or written word, The First Amendment doesn’t provide immunity from prosecution because someone uses speech or the printed word in encouraging and counseling others in the commission of a crime.

(source)

However, this doesn’t mean that all inflammatory speech or every publication and distribution of instructions on how to act illegally, can be suppressed and made illegal. The “Brandenbrug test” has to be successful first, which means that there has to be more than mere intent. There has to be incitement of an imminent lawless act, as well as the likelihood that this incitement produces or helps to produce such an act.

Human Rights Ads (18): Unite For Your Rights

(source)

See also this post on Hannah Arendt’s distinction between violence/force and power, and how this is relevant to the current situation in Iran.

Human Rights Facts (134): The Truth About the Deterrent Effect of the Death Penalty

Proponents of the death penalty usually show the following famous graph in order to “prove” that capital punishment results in fewer homicides in the U.S., and is therefore a successful deterrent:

First of all, there’s something wrong with this graph. It’s intentionally tweaked so as to highlight the recent rise in the number of executions, and to do so in a way that shows how closely correlated it is with the recent drop in the number of homicides. Compare it to this version:

homicides and executions in the U.S.

(source)

The important difference is that the second graph counts the number of executions per homicide, and not just the total number of executions. From the point of view of deterrence, this is obviously the better measure.

We can see from the second graph that the recent upswing in the number of executions is really quite small, compared to earlier periods (there was moratorium on executions in the U.S. in the early 1970s). Unless deterrence has somehow become much more effective than it was in the early parts of the 20th century – which is doubtful given the relatively low numbers and humane methods – it’s doubtful that such a relatively small increase in the number of executions during the last decades is the cause of the extraordinary decrease in the number of homicides during the same period. We have here a clear example of correlation being not equal to causation. And when we look at the whole time series, there isn’t even a clear correlation. It’s cherry picking: take that part of the time series that confirms your prejudice, and forget the rest. A common manipulation technique in statistics.

It’s not only cherry picking in terms of the period being considered, but also in terms of sidelining other possible explanatory factors. The same guys who gave us the second graph show how this works by comparing U.S. data with Canadian data, and by comparing the data for different states in the U.S.

Canada and the U.S have had and continue to have radically different capital punishment policies. Canada abolished the death penalty in the 1960s. According to those who believe in deterrence, Canada should have a completely different evolution of the number of homicides; in fact a steeper increase than the U.S. when the U.S. has an increase, or a less pronounced decrease when they both show a decrease. The fact, however, is that the graphs for both countries are very similar (although the levels are lower in Canada):

(source)

These similar movements in the rate of homicides, combined with very different capital punishment policies, indicate that the latter don’t have a real influence on the former. While the moratorium in the U.S. in the 1970s is blamed for the concurrent rise in number of homicides, we see that a similar rise occured in Canada, where the death penalty was abolished many years earlier. And, similarly, the recent decrease in homicides, said to be the result of the reinstatement of the death penalty in the U.S., also occured in Canada where there hasn’t been a reinstatement.

The same is true when we compare states within the U.S. Death-penalty states and non-death penalty states have witnessed very similar movements in homicide rates:

The drivers behind the movements in homicide rates can’t be found in capital punishment policies and hence must be found elsewhere. But then you need to be willing to look. I don’t think that those who believe in deterrence are willing to look.

More on capital punishment.

Political Graffiti (52): Multiculturalism

(source)

More on multiculturalism here and here.

Military Production and Deployment as a Stimulus for Economic Growth

(source)

This post is by guest-writer Line Løvåsen.

The military-industrial complex

War makes a profit (in monetary terms), peace doesn’t. President Eisenhower warned us in a speech in 1961 about the military-industrial complex (MIC):

We must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. (source)

The MIC is a state-industry alliance and the only part of economic production intent on destruction and conducted in secrecy.

The post-Cold-War world

In its “Arms availability report” (1999), the ICRC (International Committee of the Red Cross) shows how the changes in conflicts and the evolving “security-business” are reflected in the military-industrial complex. During the Cold War, weapons were available for global political and strategic purposes. Nowadays, weapon transfers (a broader term than arms trade, including not only commercial sales) imply economic and employment considerations, not just military/political/strategic ones as before.

Arms control has suffered a breakdown in the post Cold War-world. The industry operates at the moment without regulation. Annual global military spending is the same as the debt of all development countries. Arms producing countries earn more on arms sales to developing countries, than they give in aid. The 5 biggest arm producers are permanent members of the Security Council. The biggest clients are often developing countries with highly authoritarian governments. Selling arms to those countries leads to increased oppression of local people and a higher risk of violent conflict. People are aware that the oppression by their leaders is supported by western arms sales (and in other ways), which creates anti-western resentment.

The withdrawal of superpower support after the end of the Cold War has resulted in in a breakdown of governing stuctures in many countries. Decentralization of control and of the chain of command has created power vacuums in many states. Weapons end up in the hands of war lords and militia groups, and turned against civilians.

Small arms

There is a “small arms plague” in the world today. The post-Cold-War breakdown of many states, resulting from superpower withdrawal, has led to many intrastate conflicts. Small-arms and light weapons (SALW) are well-suited to such conflicts because of their simplicity, durability, portability, the ability to conceal, low cost and wide availability and lethality. Small arms are hand guns, pistols, sub-machine guns, mortars, landmines, grenades and light missiles. There are 500 billion of these weapons around the world, and 1134 companies producing and selling them. These weapons are also highly suited for illicit trafficking and operation by children (more on child soldiers here). Small arms are, in fact, Weapons of Mass Destruction (WMD’s), according to the International Action Network on Small Arms (IANSA).

The spread of small arms is both a cause and effect of underdevelopment and poverty. The growing availability of small arms has been a major factor hindering post-conflict rebuilding and development. Instead of being able to focus on investment in well-being and economic development, the poor are burdened with the cost of nursing the injured and paying for informal forms of security, like paramilitary groups. Much of the initiative to reduce and control small arms has been left to the poor communities themselves, with little help from the rest of the world, which seems more interested in economic self-interest. Especially the arms producing and exporting countries are more concerned about the possible consequences of arms control on their own economies. And it doesn’t help that many governments capable of donating funds towards arms control do not recognize civilian ownership of arms as a problem.

Some 300,000 to half a million people around the world are killed by small arms each year. These weapons are the major cause of civilian casualties in modern conflicts. 80-90% injured during war come from small arms. It’s strange therefore that the focus of many in the West is on controlling weapons of mass destruction, proliferation of atomic weapons, biological and chemical weapons, and that they leave the trade of conventional weapons and small arms unfettered.

The arms industry’s influence on politics

One reason is of course the profitability of this trade. But the influence of the arms industry on politics isn’t limited to the small arms niche. Notwithstanding the fact that most future security threats will be caused by terrorism and internal wars resulting from state failure, many governments still equip their armies for large interstate conflict. This, like government passivity regarding small arms, is the result of the influence of the arms industry on politics.

The economic benefits of the arms industry

The report “Escaping the Subsidy Trap: why arms exports are bad for Britain (2004)” from the British American Security Information Council (BASIC), counters the economic myths that the UK government uses to justify its support for arms exports.

The government frequently cites protection of defense jobs as a key reason for supporting arms exports. The BASIC report, however, concludes

• employment dependent on arms exports, constitutes only 0.25 percent of the national labor force
• far from providing jobs, it diverts skilled workers and investment away from more effective job-creating activity in the civil economy
• often the weapons are produced abroad, and sold to other countries.

It’s clear that some corporations and governments profit for the arms trade, not the people and the economy.

The UK government states that arms exports contribute significantly to the balance of payments and thus benefit the wider economy. The report concludes that defense exports’ share of total UK exports has consistently reduced over recent years; the economic benefits of arms exports are insignificant.

Some statistics on the arms trade and on military spending.

Human Rights Facts (133): The Arms Industry in 2008

(source)

From SIPRI:

Global military spending reached a record $1,464 billion last year with the United States taking up by far the biggest share of the total. Arms shipments were up 4 percent worldwide from 2007 and 45 percent higher than in 1999. The United States accounted for 58 percent of the worldwide increase between 1999 and 2008. China and Russia both nearly tripled their military spending over the decade. Other countries such as India, Saudi Arabia, Iran, Israel, Brazil, South Korea, Algeria and Britain also contributed substantially to the total increase. Last year’s military spending comprised about 2.4 percent of global gross domestic product, corresponding to $217 per capita.

From The Economist:

Israel spends most on defence relative to its population, shelling out over $2,300 a person, over $300 more than America. Small and rich countries, and notably Gulf states, feature prominently by this measure. Saudi Arabia ranks ninth in absolute spending, but sixth by population. China has increased spending by 10% to $85 billion to become the world’s second largest spender. But it is still dwarfed by America, whose outlay of $607 billion is higher than that of the next 14 biggest spenders combined.

More on the arms industry.

Political Artist (18): Luba Lukova

(source, source)

More on immigration.