By: Jamie LaRue

There has long been a crucial legal distinction between speech and action. The First Amendment grants great freedom of speech, particularly political speech. But there are moments when speech moves from mere expression of opinion to an imminent threat. It’s the difference between “lock her up!” (when Hillary is not in the room) and “grab your pitchforks!” (when the target group is just outside). When speech becomes an immediate incitement of violence, it is no longer protected.

But several recent cases further blur the line between talk and action. The first is Michelle Carter, a 17 year old woman who repeatedly urged her 20 year old boyfriend to kill himself, and even text-talked him back into it when he was changing his mind. Carter was convicted of involuntary manslaughter in 2017 for the 2014 incident, and given a 15 month jail sentence.

A second case, in 2019, involved Inyoung You, a 21 year old woman charged with involuntary manslaughter in connection with her boyfriend’s suicide. Like Carter, she too sent thousands of abusive posts encouraging her boyfriend to kill himself. Like Carter, she has pleaded not guilty.

A third case involves prominent journalist Kurt Eichenwald. After posting what some reports have called a “particularly inflammatory tweet about President Trump,” he logged into Twitter the next day to find a flashing GIF that was headed, “YOU DESERVE A SEIZURE FOR YOUR POSTS.”

Eichenwald is an epileptic, and did suffer a seizure. If his wife had not walked on him at that moment, he likely would have died. He remains physically damaged by the incident. The Epilepsy Foundation reports that it has identified 30 episodes of epileptics targeted with this form of online danger, called “strobe” GIFS.

Eichenwald has written extensively about his epilepsy. He is also a Jew, a prominent theme in the tweets by his online attacker. That attacker was also defended by various neo-Nazi, right wing extremists, mostly on free speech grounds. The attacker, surprisingly, is expected to plead guilty to assault.

Clearly, this kind of “speech” takes harassment to new levels. Here the focus is not just on expressing opinions, but on the attempt to injure, where death is the ultimate injury. While the first two cases may be caught up in the mysteries of mutual dependency and mental illness, the last is clearly premeditated violence not based on a personal relationship.

The framers of the Constitution weren’t psychic. While they were familiar with the extremely caustic rough and tumble of broadsides and small newspapers, those who wrote the First Amendment didn’t foresee strobe GIFS, or even Twitter and Facebook. Those who wrote the Second Amendment didn’t anticipate rapid fire assault weapons purchased freely by people who do not belong to official state militia. So the framework of the law, to some extent, is always catching up to technology and social change.

Yet as these cases make clear, free speech is not an absolute right. While it has always been used to denigrate some causes or people, in some cases, it is clear that speech can indeed be weaponized. And at that point, it’s a crime.

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Jamie LaRue is a former public library administrator, former director of the Freedom to Read Foundation and ALA’s Office for Intellectual Freedom, and a current consultant and speaker.