Lee and Incitement
by Walter Block: Ron
Paul and Gandhi
this note from a regular reader of LewRockwell.com. I offer it below,
only very slightly edited to preserve anonymity and promote clarity,
followed by my response to this challenge to libertarian theory.
read this Wenzel post:
to know your thoughts on the situation. Setting aside the violation
to post others' info), if the Twitter message Spike Lee posted was
the accurate address of the "real" George Zimmerman (the
one who actually shot Trayvon Martin), then I'm wondering:
Lee committed a crime by libertarian standards?
2) If the address
had been correct, and harm came to Zimmerman, and the perpetrator
testified that he had obtained the address from Lee's posting, would
any liability accrue to Lee under libertarian law?
3) Since Lee
mistakenly posted the wrong address, if the couple at the address
were to be harmed as a function of the Zimmerman incident and Lee's
address posting, would Lee bear any liability under libertarian
think of many reasons why Lee would Tweet the address other than
to facilitate others in causing harm to Zimmerman, but that's making
assumptions about what was in Lee's head. Maybe he posted the address
so people could write Zimmerman letters saying they disapproved
of his conduct. Or maybe Lee is passionate about civil liberties
and wants defense attorneys to be able to contact Zimmerman so they
can offer their services to help ensure he's not the victim of a
witch hunt. Just saying..."
Here is my
response. What this reader is really asking about is incitement.
Should incitement be a crime? Let me start off with that issue,
which is not exactly what is being asked about, but I shall use
this as a jumping off point.
As with virtually
all difficult questions about libertarian theory, we do best to
begin by consulting what Murray Rothbard had to say. I quote him
Ethics of Liberty, p. 80:
it be illegal …. to ‘incite to riot’? 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. 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 – more so, if he were the mastermind
who headed the criminal gang. This is a seemingly subtle distinction
which in practice is clearcut there is a world of difference
between the head of a criminal gang and a soap-box orator during
a riot; the former is not properly to be charged simply with ‘incitement.’"
agree with Murray on this matter. Indeed, reading him is like enjoying
a breath of fresh air. So, the only question for me, then, is, What
role did Spike Lee play? Was he a "criminal mastermind"?
Or was he merely an innocent inciter?
of the facts of this case (boy oh boy do I wish we had Murray around
to consult with) is that Spike Lee’s position was somewhere in between
these two. He wasn’t the mastermind, but he did attempt to aid and
abet, not merely exhort or incite potential rioters/murderers. To
answer the first question I do think Mr. Lee has "committed
a crime by libertarian standards." But it is more akin to being
the get-away driver for the criminal gang than that of the ring
leader. He didn’t publicly state, "Go end the life of the killer
of Trayvon Martin," and then retire from the scene, as he would
have were his role limited to that of inciter. Nor did he take on
the status of gang leader, giving out weapons, orders, plans, (implicit)
threats to the gang members, etc.
answer the second question, assuming arguendo that he tweeted accurate
information, Lee gave the potential mob vital knowledge of the whereabouts
of their intended victim. Had the mob then killed George Zimmerman
(I assume that at present this is innocent of any crime, since he
has not – yet? – been convicted of any), the rioters would have
been guilty of murder, and Lee of being an accessory. That in my
view is a very serious offense.
Now for the
third question. We now return to reality from our first contrary
to fact hypothetical, and assume a second one. We note that Lee
gave out erroneous information. The address he mentioned belonged
to people entirely unconnected to the death of Trayvon Martin. Suppose
the criminals had killed this person who no one in the world considers
guilty of any crime. Does Spike Lee bear any responsibility for
such a tragedy? The first thought right off the top of my head is
that he does, but this is not a crime but a tort. That is, I assume
that Lee did indeed have the intent that the shooter of Trayvon
Martin be killed by the mob, he had no goal that this innocent person
be treated in such a manner. If it occurred, Lee would have no mens
rea, or guilty intent against, this innocent person. So, Lee’s
mis-step would be more in the way of an accident, than a purposeful
act. But, still, when someone is cleaning his gun and it fires wounding
another person, or crashes his car into a fence by accident, libertarian
law would dictate that he has to make good for the damage he has
In saying this,
I am of course assuming away the possibility that Lee intended to
get people to write Zimmerman "letters," was "passionate
about civil liberties," etc. If that were true, I would regard
Lee as more than just a bit naïve, but innocent not only of
a crime, but of a tort as well. But, in point of fact, these were
his actual words:
"feel free to reach out & touch
him." It is exceedingly difficult to interpret this statement
in any innocent manner.
I am not sure
that I have nailed this one. I have answered this question all too
soon after receiving it. I am writing this more as a plea for others
to pipe up and help settle these very important challenges, than
as what I consider a definitive statement. Maybe, if other Rothbardians
contribute to what I hope becomes a free flowing discussion of this
challenge, we can together become clarify libertarian theory on
There is one
"answer" to these questions that I reject out of hand;
the spontaneous order response to the Hayekian types, to wit that
proper libertarian law in this or any other case is whatever libertarian
courts decide it is. I don’t think that courts have any privileged
position when it comes to the determination of law. It is always
possible to ask, without fear of pain of self contradiction, the
Court decided X, but is X just?
I am an unrepentant
constructivist. That is, I seek to follow the road that Murray Rothbard
set out: to start with private property rights based on homesteading
and the non aggression principle, and to follow this philosophy
wherever it logically leads, no matter where.
Block [send him mail] is a
professor of economics at Loyola University New Orleans, and a senior
fellow of the Ludwig von Mises Institute. He is the author of Defending
the Undefendable and Labor
Economics From A Free Market Perspective. His latest book
Privatization of Roads and Highways.
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