In the San Bernardino Attacks, a Stark Example of the Difference Between Speech and Crime

Given that there are so many people today who believe that offensive speech ought to be outlawed, it’s worth rehearsing the crucial legal and moral difference between free speech and crime. In a column that might be described as picking over the body of one of the San Bernardino victims for evidence that he deserved it, Linda Stasi of the New York Daily News inadvertently provides us with a valuable comparison that illustrates this difference. Stasi reviews the beliefs of the terrorists and one of their victims, Nicholas Thalasinos, a religious conservative who often harshly criticized Islam, and declares them both to be hateful bigots. The implication, which Stasi isn’t willing to state openly, is that Thalasinos and his killers are in some sense morally equivalent and that people who harshly criticize Islam — Stasi mentions Pamela Geller as an example — are, at least in part, the cause of Islamic terrorism. This view, which was abundant among intellectuals on the left after the Charlie Hebdo and Garland, Texas attacks, manages to obliterate the moral and legal distinction between the terrorists and their victims and to blame the victims for the crime in the process.

I should point out that I think Nicholas Thalasinos had some nutty and odious views. He considered abortion to be murder and repeatedly accused Planned Parenthood of the crime. He claimed that Hillary Clinton is a eugenicist because she described herself as a progressive who supports the right to abortion. (There were many supporters of eugenics among 19th and early 20th century progressives, but that doesn’t make Hillary Clinton one.) And he believed in his own form of religious fundamentalism.

Of course, as an atheist, I think all religions, including Islam, are fundamentally irrational and wrong. I don’t know enough about either Christianity or Islam to say that the latter is more irrational or violent in principle than the former, but it’s clear that a significant percentage of Muslims today (certainly throughout the Muslim world) follow their religion to the point of condoning or committing terrorism and murder. The same is simply not true of today’s Christians and Jews, however. Why that is so is an important question. That it is so is obvious. (For more on this general topic, see Elan Journo’s book Winning the Unwinnable War, among other things he’s written.)

But having and expressing odious ideas is not the same thing as committing murder. Even if we grant that some of Thalasinos’s ideas were just as irrational as the ideas of the people who murdered him, there’s still a world of difference between Thalasinos and his killers. The San Bernardino terrorists chose to impose their views on others by force — by killing and injuring them and terrorizing an entire nation (which was their goal). Thalasinos chose to use persuasion. He tried to convince others that he was right by speaking and arguing. By all accounts, Thalasinos was a civil, albeit outspoken, person. He agitated for his religious and political views and against Islam, but otherwise left people alone to live their lives. The same cannot be said about his killers. As we now know, one of them pledged allegiance to ISIS, a known terrorist group. For months, both participated in a conspiracy to commit at least one — probably many — terror attacks. That they were soft-spoken parents of an infant child who minded their own business right up until they committed mass murder is of no consequence in judging them, morally or legally. By ignoring this crucial difference — that Thalasinos respected the rights of others, but his killers did not — Stasi obliterates the difference between peaceful, law-abiding citizens and criminals.

This difference is absolutely crucial to the existence of a free and civilized society. In a free society, people are entitled to believe and say all sorts of offensive and disagreeable things. What they are not free to do is impose those views on others at the point of a gun. Initiating force against others is a monstrous evil. It prevents people from thinking for themselves, acting on their own judgment, and pursuing their own happiness. Ultimately, it prevents them from living, a point that was demonstrated to terrifying effect in the San Bernardino attacks. 

The basic condition of living in a free society is renouncing the use of force in favor of reason and persuasion. Even people with irrational and odious ideas can observe this line and respect the rights of others. Millions of people do. By all accounts, Nicholas Thalasinos did. That made him a civilized, law abiding person. Refusing to observe the line between force and persuasion made his killers barbarians. 

In ignoring the difference between the two, Stasi and others who engage in tacit victim-blaming ignore the fact that terrorists, like everyone else, are able to choose their actions and therefore bear responsibility for those actions. They don’t have to resort to violence. They could do what Nicholas Thalasinos did and speak instead.

Implicitly, Stasi’s view amounts to the idea that “hateful” speech causes others to resort to violence. The offended and outraged are not really responsible for their actions, according to this view. They are driven by their passions and the sense of powerlessness and oppression inspired by the “hatred” and “bigotry” of their critics. As a result, it’s the “hatred” and “bigotry” on which we should focus in the aftermath of crime and terrorism, not the evil choices of the perpetrators.

Cartoonist Gary Trudeau expressed this view after the Paris attacks. Charlie Hebdo was “punching downward” at a “powerless, disenfranchised minority,” he said. The publication’s offensive speech caused Muslims in Europe to join with radicals and “incited” riots and violent protests throughout the Muslim world. The killers and those who supported and condoned their actions were not fundamentally at fault, under this view. The real culprits were those who “provoked” them with offensive ideas. (You can find more ARI commentary on the Paris attacks and the reaction to them here.)

Notice that this approach denies moral agency to the very people who are claimed to be the victims. They are like a pack of hungry wolves being taunted with fresh meat. If they attack, it’s not them we should blame, but “haters,” like Pamela Geller, Charlie Hebdo, and now Nicholas Thalasinos, who inflame their passions by criticizing their religion.  

If we accept this view, how can we draw a distinction in law between those who murder and those who merely speak out? If people are driven by their passions or their feelings of “powerlessness” to commit crimes, if offensive speech causes them to lash out, if those who respect the rights of others by using words instead of bullets can be lumped together as “haters” and “bigots” with those who murder and terrorize, how can we justify treating one group differently than the other? Why do we label one group “criminals” and the other “innocents”? The logical answer is that there really is no difference between them, and they should be lumped together. We should, in effect, forgive one group for their sins (because they’re not really responsible) and shift the blame to the other or to “society” in general.

By ignoring the crucial moral distinction between those who choose to initiate force against others and those who don’t, we end up blurring the legal distinction between free speech and crime (indeed, between any lawful behavior and crime). We end up where Gary Trudeau and many others have ended up: equating speech that offends with incitement, threats, and other criminal behavior. It’s not surprising that with this attitude comes demands (on college campuses among other places) to ban speech that offends people.

Of course, as a practical matter, the difference between initiating force and communicating ideas is not always obvious. It’s easy enough to tell the difference between someone who commits murder by his own hand and someone who engages in a debate (at least it should be). But how do we know when someone has committed the crime of incitement? Why isn’t Trudeau correct when he claims that Charlie Hebdo “incited” millions of Muslims to riot and commit crimes? 

The law of incitement is a big subject. The simplest answer I can give is that incitement is similar to crimes like conspiracy and aiding and abetting criminals. All of them require, in essence, a conscious and intentional plan to initiate force against others and positive steps toward that end. The perpetrator has to do more than say something that angers or offends people, who then go off and commit crimes on their own. In effect, he has to be trying to convince them to join with him to violate the rights of others.  

For a very good, albeit grim, example of incitement, conspiracy, and threats all wrapped up in one publication, I refer you to Al Qaeda’s terrorist recruitment magazine, Inspire. You can view an issue of the magazine, which calls for the deaths of a number of people who have offended Islamists over the years (Flemming Rose and Ayaan Hirsi Ali among them) here. There’s evidence that the San Bernardino terrorists may have found instructions for the pipe bombs they made in this publication.

There’s a very big difference between Inspire and the San Bernardino killers, on the one hand, and anything Pamela Geller, Charlie Hebdo, or Nicholas Thalasinos have done, on the other. We ignore that difference at our peril.