Who bears responsibility for the actions of Ismaaiyl Abdullah Brinsley? Who bears responsibility for Brinsley’s murder of two New York City police officers?
Is Brinsley alone guilty of murder or do those who incited him bear some of the responsibility?
Are there different degrees responsibility or are there different kinds?
When Jared Loughner opened fire at a Gabby Giffords campaign event, leftist commentators rushed into print to blame it all on Sarah Palin. Why? Because she had “targeted” Giffords for defeat in an election.
Some conservatives believe that they should not blame anyone but Brinsley for his actions. Under the banner of individual responsibility they choose to exculpate those who might have influenced or incited him.
They do not want to find themselves in bed with the leftist attack squad that has always rushed to blame violence on the Tea Party.
On this issue conservative opinion is divided. In National Review Charles Cooke argued that the full burden of responsibility lies with the disaffected maniac who pulled the trigger. Others believe that those who incited mobs to murder police officers bear some measure of responsibility.
But, what if Brinsley was criminally insane? Ought he to be placed in the same category as James Holmes, Jared Loughner and Adam Lanza?
Clearly, he believed that his was a righteous action. He was killing the policemen to advance a political cause.
Effectively, he knew the difference between right and wrong. Unfortunately, he believed that he was doing the right thing.
If we assume that Brinsley was merely a nobody who wanted to become a somebody, who believed that fame or even infamy was preferable to anonymity, he would have needed to know which actions would receive the greatest attention and would most fully advance his ideology.
Holmes, Loughner and Lanza did not know right from wrong. They were not incited to mass murder by a chanting mob.
The average schizophrenic is not seeking out infamy. Often he is merely doing what his voices are telling him to do. At times, he believes that by following the voices’ commands he will free himself from an unbearable anguish.
Many of these tissues have been central to jurisprudence for centuries, if not millennia. With Andrew McCarthy to guide us, we will attempt to sort through the complexity of the issues. Having worked as a federal prosecutor, and having prosecuted terrorism cases, McCarthy is well qualified to examine the way the law addresses these issues.
Of course, the criminal guilt for Brinsley’s actions belongs only to Brinsley himself.
But, McCarthy continues, that is only the beginning:
Only Ismaaiyl Abdullah Brinsley is guilty of murder, but that is not the end of the culpability inquiry.
It’s one thing to pull the trigger. It’s quite another to incite others to do so. Laws on incitement are subtle and complex, so McCarthy is at pains to explain them carefully:
Incitement is not as serious an offense as the murder and mayhem it can result in, but it is still a serious wrong. As a matter of law, incitement to violence is so serious that we criminalize it — meaning the violence called for need not even happen for the inciter to be prosecuted. Consequently, when murder and mayhem do follow from incitement, of course we should regard the inciters as partially responsible.
Incitement, McCarthy continues, is not protected by the First Amendment:
As the late Judge Robert Bork argued, bolstered by such precedents as the Supreme Court’s 1942 Chaplinsky v. New Hampshire ruling, there have always been well-known exclusions from it, including speech that is slanderous, obscene, or profane; or speech intended to instigate lawlessness, particularly “fighting words” meant to provoke violence.
And, as we all know, the First Amendment does not protect you from shouting “Fire!” in a crowded theatre.
Obviously, it is not black-and-white. The law recognizes the complexity of human motives and actions, especially as they involve intent and likelihood:
Naturally, our law has developed principles for judging the intent of the speaker and the likelihood of violence: We ensure that the fan who vacantly yells, “Kill the umpire!” is not treated as if he really wants the umpire killed, and that someone who is merely teaching students about a violent doctrine is not treated as if he were advocating violence. But the bottom line is that speech calling for lawlessness is worthy of little, if any, protection. Speech calling for violent lawlessness can be legally actionable and should be deemed morally culpable.
Those who provoke mobs and incite to violence do bear a measure of responsibility:
People who organize mobs knowing full well that eruptions of violence are foreseeable are culpable when violence erupts. You want to say they are not guilty of murder? Fine, but that should not absolve their contributory responsibility for the loss of life that predictably occurs. The same goes for others who incite the mob: those who call for the killing of cops. They are not equally as culpable as the murderer. That’s why our law punishes murder more harshly than it does incitement. But those who incite are proportionately responsible — and when what they are inciting is atrocious, they should be regarded as atrocious, too.
As for the public officials, when the president and attorney general and mayor of New York signal that righteous anger might reasonably lead to violence or when they declare that those who riot need to have their grievances heard, they too bear some responsibility for the fallout:
When public officials signal to the mob that its anger is so justified that its criminal behavior, even if not exactly condoned, will be rationalized, minimized, or ignored, they are facilitating criminality. So of course they should be deemed contributorily culpable when the criminality happens.
To say that the mayor, the attorney general, and the president are not guilty of last weekend’s murders of two police officers is not to say they are blameless. To distinguish them from the murderer is not to pronounce them suitable for the weighty public trusts they hold. There is guilt here to be apportioned. Apportioning it is not collectivizing it — it is not engaging in the same convoluted demagoguery that blamed Sarah Palin’s electioneering for a mass-murder in Tucson by a man with a history of mental illness, or that blamed bourgeois America for the killing of John F. Kennedy by a Communist.
There are degrees of responsibility and there are kinds of responsibility. Some are covered by the criminal law. Some require a reference to moral law.