Limiting Free Speech (38): Cheering on a Criminal

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law / limiting free speech
Jodie Foster in The Accused

Jodie Foster in The Accused

(source)

Can bystanders who cheer on a criminal invoke their right to free speech, or can the government prosecute them and hence limit their right to free speech? An infamous example is public rape, a particularly horrendous crime in which a man or group of men rapes a woman in a public space, for example a bar, while being loudly encouraged by a group of bystanders, most of whom will probably be sexually aroused by the spectacle. The movie “The Accused” offers a classic depiction of such a crime, and is based on a real-life public gang-rape.

The case of cheering bystanders and their right to free speech is similar, although not identical to some other cases discussed previously in this blog series, such as hate speech, speech that teaches the methods of illegal activity, death threats, and incitement to violence. These cases are similar because it’s assumed that all these forms of speech can produce violence or can make violence more likely.

Eugene Volokh, normally very hesitant to allow restrictions on free speech, says that prosecution should be possible

on the grounds that the cheering tends to encourage the criminal and thus constitutes “abett[ing].” “An aider and abettor is one who acts with both knowledge of the perpetrator’s criminal purpose and the intent of encouraging or facilitating commission of the offense.” People v. Avila, 38 Cal. 4th 491, 564 (2006). (source)

In some circumstances, the bystanders are even strict accomplices in the sense that they aid the criminal in his or her actions: their cheering may make it impossible for others to intervene because they seal off the crime scene, or the cheering can include precise instructions. One can also imagine cases in which the criminals wouldn’t have acted if not for the cheering. But even if the bystanders are not strict accomplices in any of these senses, they are surely guilty of criminal failure to assist persons in need. Instead of cheering, they should have called the police. So, in all these cases, the bystanders help the crime occur, even if all they do is vaguely encourage someone. Hence they cannot claim that their right to free speech should protect them against criminal prosecution.

More posts in this series.

3 Comments

  1. Dr. Spagnoli, what do you think about people who cheer on a suicidal person, i.e. entice them to carry through with their suicide. I believe there have been court cases about this in the U.S. In fact, if I remember correctly, there is a person currently being prosecuted for teaching depressed and suicidal people how to efficiently kill themselves (e.g. how to tie a noose properly). What are your thoughts on that?

    • As you know from previous posts here, I’m in favor of self-determination and the right to suicide, even assisted suicide. But for me, when a person needs cheering on he or she doesn’t want to commit suicide. Maybe he or she doesn’t want to live either, but obviously hasn’t decided yet. So “pushing” this person into suicide looks like mind control, and that’s the opposite of self-determination. Hence, I think one can make the argument that it’s murder, depending on the specifics of the case.

  2. Pingback: Limiting Free Speech (47): Incitement to Commit Suicide | P.a.p.-Blog | Human Rights Etc.

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