Is highly irresponsible but unintentional encouragement of violence a crime in the US?

Question

Inspired by recent events, I looked up the legal definition of incitement in the US. For example, the First Amendment does not protect speech if the speaker intends to incite a violation of the law that is both imminent and likely (https://en.wikipedia.org/wiki/Imminent_lawless_action).

I wrote some legal philosophy but never took a college course in law, and I am unsure if highly irresponsible but unintentional encouragement of violence is a crime in the US. [Note, this question has nothing to do with process of impeachment that might have a different definition of incitement.]

Answer 1

By definition this is not an intentional crime or tort (i.e. civil wrong for which one can sue).

There are several standards of intent (also called mens rea) other than knowledge that one is committing a crime or intent to commit a crime, that are commonly applied to criminal offenses and torts:

• Strict liability
• Negligence
• Gross negligence
• Willful and wanton conduct
• Recklessness
• Extreme indifference

Strict liability would be highly unlikely to apply to unintentional encouragement of violence. Usually, in the criminal context, it applies to traffic offenses, like speeding or drunk driving defined by blood alcohol content.

Negligence is often a basis for liability in a lawsuit or for other civil remedies (e.g. cause to fire someone from their employment), but is usually only a basis for criminal liability when a death or very severe injury results (e.g. vehicular homicide) or when the circumstances are such that there is a heightened risk involved in an activity (e.g. discharging a firearm, or treatment of a small child in one's custody). Even then, for criminal law purposes, liability is usually only imposed in cases of truly "gross negligence." One could imagine highly stylized fact patterns where gross negligence encouraging violence could give rise to criminal liability (e.g. gross negligence by the commander of a military unit under military justice) but this would be a rare and exceptional situation.

Willful and wanton conduct, and recklessness, don't require actual knowledge or specific intent, but do presume disregard for objectively obvious risks. Under the Model Penal Code, this is the default standard of intent that applies when no specific standard is articulated in a statute. Unintentional but reckless conduct encouraging people to be violent might very well give rise to criminal liability.

Extreme indifference (also sometimes called deliberate indifference) is an extreme form of recklessness in which one acts with total disregard for the consequences when one clearly knows or should know that serious consequences are almost certain, even if the precise consequences to whom or what are not known. This level of intent is often treated as equivalent to intentional conduct and would often give rise to criminal liability.

There are many potentially relevant federal and state statutes that could apply, but this is the general lay of the land regarding unintentional conduct.

Answer 2

Generally, in cases involving speech that may not be protected by the First Amendment, the burden of proof requires the prosecution to prove that the speech was not protected and that the speaker did intend the speech to incite imminent lawless action. Words that may be used in a metaphorical sense(i.e. "You gotta fight! For your Right! To PAAAAAARTY!) and a literal sense will always defer to the speaker's stated intent are assumed valid unless and until they are proven to be false statements to intent.

In the above example, almost every who has heard the Beastie Boy's song can probably infer from the lyrics that the Beastie Boys do not want teenagers to get into actual fist fights against there parents and teachers. Rather, they are listing the amount of restrictions on what a teenager can do for amusement and encourage a verbal rebuke only if the parents start complaining about listening to the Beastie Boys music (by pointing out they hate school, can't smoke despite Dad's 2-pack-aday addictiion, mom's strong disapproval of a minor looking at pornagraphy, and the rules about the teen's physical appearence including clothing and hair style, the restriction on music might be a bit extreme.). There's nothing in the lyrics to assume a call to violence. If the song did inspire that in a teen, it's far easier to convict the teen for the crime of assault and battery than it is to prosecute the band that sung the song, and it's far to allow the harmless song of teenage rebellion to persist than to control the consumption of ideas to such a degree that there is no recourse for a Beastie Boys fan to resort to violence to demand to music.

To paraphrase German philosopher Heinrich Heine, "Those who burn books, will burn men next." One cannot destroy a "bad" idea by destroying the book (or other media storage) as they are only the tools through which ideas are communicated from their actual place of storage. It's rather like taking a hammer to your computer monitor to remove a computer virus. It's still there, and it's still going to cause the trouble it will cause... all you've done is taken away your ability to see it.