Richard Ashby Wilson Explains Incitement Law at Human Rights Workshop

Richard Ashby Wilson has spent the past few years researching the law of incitement in the U.S. and abroad. In his latest book, Incitement on Trial: Prosecuting International Speech Crimes, he investigates the struggles of international criminal tribunals to hold media and political leaders accountable for inciting ethnic and racial violence and genocide. As Wilson explained at the March 8 Human Rights Workshop, his subsequent research has led him to conclude that in the U.S., incitement law is underdeveloped and rarely used to prosecute those who seemingly provoke or encourage others to commit violence.

Wilson is the Gladstein Distinguished Chair of Human Rights and a Professor of Anthropology and Law at the University of Connecticut, as well as a visiting scholar at the Russell Sage Foundation in New York City. He began investigating the social science and law of incitement in the U.S. during the 2016 presidential election. He had just finished writing a previous book when videos of Donald Trump campaign rallies popped up online, showing Trump supporters forcibly ejecting protestors while Trump shouted, “Get ’em outta here!”

The FBI found that the number of hate crimes committed in the U.S. increased by five percent in 2016 and more than doubled the day after Donald Trump was elected president. “I don’t know if it was the election or [Trump’s] speech that authorized these crimes,” said Wilson. “Either way, there was a strong correlation between the presidency and campaign and hate crimes.”

Motivated by these observations, Wilson began researching incitement law and social science in the U.S. He found that applying incitement law requires an assessment of the intentionality of the speaker and the risk posed by their words. “The risk element is grossly underdeveloped in U.S. law,” Wilson argued, noting that decisions such as the one in Texas v. Johnson (1989) ignored risk entirely. In Texas v. Johnson, the Supreme Court ruled that Gregory Lee Johnson’s burning of an American flag outside the Dallas City Hall was a protected expression of his first amendment rights. Justice Antonin Scalia maintained in his opinion that there was no connection between inflammatory speech and a greater likelihood of violence. Wilson called Scalia’s idea a “null hypothesis that social science has disproved many times,” and explained that remarks like Scalia’s proved that judges were making comments on social behavior and its potential consequences in a “vacuum of legal and social science guidance.”

Wilson also challenged the judges’ criteria for the audience of hate speech. He brought up the case Bible Believers v. Wayne Co (2015), a Sixth U.S. Circuit Court of Appeals case concerning a group of evangelical Christians who were ordered to leave the 2012 Arab International Festival in Dearborn, MI, after they marched through the festival holding a severed pig’s head on a stick and signs insulting the Prophet Mohamed and other aspects of Islam. One line of argument used in the majority opinion, which ruled that the Christians’ first amendment rights had been violated, was that the “average person” would not have been offended by the demonstrator’s actions. Wilson contested this point, arguing that the court should have primarily considered the effects of the Christians’ speech on their intended audience—the festival attendees, most of whom were Muslim and were evidently offended by the demonstration.

Wilson has responded to these problems by developing a new framework for incitement law that, he hopes, would do more to protect minorities from violence. “My suggestion,” he said, “is that we use a model for evaluating the probability that speech might incite violence by [identifying] factors—not causes—that elevate the risk of violence.” Wilson shared several such factors—for instance, the speaker’s level of authority—and emphasized that while his criteria were not wholly consistent or objective, they could remove some prejudice from the legal process and reframe legal debates around incitement to account for the audience’s point of view. Wilson further argued that this reframing could not happen unless attorneys worked more closely with those affected by hate crimes and speech.

Wilson does not believe that law can end hate crimes or racist speech and posited that education is likely a better tool to combat intolerance. But he maintained that law must more aggressively target speech that calls for violence. “Let’s go after that,” he urged, “even if the other stuff is best done through education.”