Interestingly, I don’t have to be an expert in 1st Amendment law to see the problems here. First, the definition of “stochastic.”
While it’s probably not well-captured by the US Code, the leader of a devoted group of fanatics tagging his perceived adversary with the words ‘death wish’ is textbook stochastic terrorism—and it would behoove both the media and the legal system to catch up with how that works. https://t.co/uHV61LmCMn— southpaw (@nycsouthpaw) October 1, 2022
Stochastic (from the Greek στόχος for aim or guess) refers to systems whose behaviour is intrinsically non-deterministic. A stochastic process is one whose behavior is non-deterministic, in that a system's subsequent state is determined both by the process's predictable actions and by a random element.
It is a term from mathematics, having to do with probability. Now watch what it does when the phrase is “stochastic terrorism.”
As described by leading scholars, stochastic terrorism involves ‘the use of mass media to provoke random acts of ideologically motivated violence that are statistically predictable but individually unpredictable’ (Hamm and Spaaij, 2017). Such speech is plausibly related to violent outcomes, and yet falls outside direct forms of incitement.
So now not only is the cause and effect non-deterministic, but by definition it falls outside the law on incitement.
You see, we tried this already. In Brandenburg v Ohio, Brandenburg was charged with violating Ohio’s “syndicalism” law for advocating "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.” Brandenburg was a KKK leader who spoke at a Klan rally. The Court held the threat must be directed at inciting imminent action, and is likely to produce such action in order to evade 1st Amendment protection. Without that, anyone’s angry tweet could be “stochastic terrorism” because it might disturb the peace or lead someone to getting punched in the nose.
Oh, are we going to distinguish “acts of violence” on a sliding scale? What if there isn’t any violence, just a thwarted plot to commit violence? A conspiracy, an inchoate crime where the plan, the mere discussion, is the crime itself? So inchoate stochastic terrorism where we can’t establish even a statistical connection, much less a causal one, and where no violence occurred?
Even without conspiracy and inchoateness, where’s the causal connection? Somebody posts something, and at some unspecified time in the future someone else commits violence, and we connect one to the other…how? And yet we insist on the connection because…we don’t like the speaker?
Yeah; what could go wrong? And if we do it for tweets, we can do it for books .
Oh, wait, I thought we were against book bans. Well, for the sake of security I guess we have to give up some freedom, right?
What could go wrong?