April 2, 2012
I received this note from a regular reader of LewRockwell.com. I offer it below, only very slightly edited to preserve anonymity and promote clarity, followed by my response to this challenge to libertarian theory. Here goes:
“I just read this Wenzel post:
“1) Has Lee committed a crime by libertarian standards?
2) If the address had been correct, and harm came to Zimmerman, and the perpetrator testified that he had obtained the address from Lee’s posting, would any liability accrue to Lee under libertarian law?
3) Since Lee mistakenly posted the wrong address, if the couple at the address were to be harmed as a function of the Zimmerman incident and Lee’s address posting, would Lee bear any liability under libertarian law?
“I can’t think of many reasons why Lee would Tweet the address other than to facilitate others in causing harm to Zimmerman, but that’s making assumptions about what was in Lee’s head. Maybe he posted the address so people could write Zimmerman letters saying they disapproved of his conduct. Or maybe Lee is passionate about civil liberties and wants defense attorneys to be able to contact Zimmerman so they can offer their services to help ensure he’s not the victim of a witch hunt. Just saying…”
Here is my response. What this reader is really asking about is incitement. Should incitement be a crime? Let me start off with that issue, which is not exactly what is being asked about, but I shall use this as a jumping off point.
“Should it be illegal …. to ‘incite to riot’? Suppose that Green exhorts a crowd: ‘Go! Burn! Loot! Kill!’ and the mob proceeds to do just that, with Green having nothing further to do with these criminal activities. Since every man is free to adopt or not adopt any course of action he wishes, we cannot say that in some way Green determined the members of the mob to their criminal activities; we cannot make him, because of his exhortation, at all responsible for their crimes. ‘Inciting to riot,’ therefore, is a pure exercise of a man’s right to speak without being thereby implicated in crime. On the other hand, it is obvious that if Green happened to be involved in a plan or conspiracy with others to commit various crimes, and that then Green told them to proceed, he would then be just as implicated in the crimes as are the others – more so, if he were the mastermind who headed the criminal gang. This is a seemingly subtle distinction which in practice is clearcut – there is a world of difference between the head of a criminal gang and a soap-box orator during a riot; the former is not, properly to be charged simply with ‘incitement.’”
I entirely agree with Murray on this matter. Indeed, reading him is like enjoying a breath of fresh air. So, the only question for me, then, is, What role did Spike Lee play? Was he a “criminal mastermind”? Or was he merely an innocent inciter?
My reading of the facts of this case (boy oh boy do I wish we had Murray around to consult with) is that Spike Lee’s position was somewhere in between these two. He wasn’t the mastermind, but he did attempt to aid and abet, not merely exhort or incite potential rioters/murderers. To answer the first question I do think Mr. Lee has “committed a crime by libertarian standards.” But it is more akin to being the get-away driver for the criminal gang than that of the ring leader. He didn’t publicly state, “Go end the life of the killer of Trayvon Martin,” and then retire from the scene, as he would have were his role limited to that of inciter. Nor did he take on the status of gang leader, giving out weapons, orders, plans, (implicit) threats to the gang members, etc.
Instead, to answer the second question, assuming arguendo that he tweeted accurate information, Lee gave the potential mob vital knowledge of the whereabouts of their intended victim. Had the mob then killed George Zimmerman (I assume that at present this is innocent of any crime, since he has not – yet? – been convicted of any), the rioters would have been guilty of murder, and Lee of being an accessory. That in my view is a very serious offense.
Now for the third question. We now return to reality from our first contrary to fact hypothetical, and assume a second one. We note that Lee gave out erroneous information. The address he mentioned belonged to people entirely unconnected to the death of Trayvon Martin. Suppose the criminals had killed this person who no one in the world considers guilty of any crime. Does Spike Lee bear any responsibility for such a tragedy? The first thought right off the top of my head is that he does, but this is not a crime but a tort. That is, I assume that Lee did indeed have the intent that the shooter of Trayvon Martin be killed by the mob, he had no goal that this innocent person be treated in such a manner. If it occurred, Lee would have no mens rea, or guilty intent against, this innocent person. So, Lee’s mis-step would be more in the way of an accident, than a purposeful act. But, still, when someone is cleaning his gun and it fires wounding another person, or crashes his car into a fence by accident, libertarian law would dictate that he has to make good for the damage he has thereby caused.
In saying this, I am of course assuming away the possibility that Lee intended to get people to write Zimmerman “letters,” was “passionate about civil liberties,” etc. If that were true, I would regard Lee as more than just a bit naïve, but innocent not only of a crime, but of a tort as well. But, in point of fact, these were his actual words: “feel free to reach out & touch him.” It is exceedingly difficult to interpret this statement in any innocent manner.
I am not sure that I have nailed this one. I have answered this question all too soon after receiving it. I am writing this more as a plea for others to pipe up and help settle these very important challenges, than as what I consider a definitive statement. Maybe, if other Rothbardians contribute to what I hope becomes a free flowing discussion of this challenge, we can together become clarify libertarian theory on this point.
There is one “answer” to these questions that I reject out of hand; the spontaneous order response to the Hayekian types, to wit that proper libertarian law in this or any other case is whatever libertarian courts decide it is. I don’t think that courts have any privileged position when it comes to the determination of law. It is always possible to ask, without fear of pain of self contradiction, the Court decided X, but is X just?
I am an unrepentant constructivist. That is, I seek to follow the road that Murray Rothbard set out: to start with private property rights based on homesteading and the non aggression principle, and to follow this philosophy wherever it logically leads, no matter where.
Dr. Block is a professor of economics at Loyola University New Orleans, and a senior fellow of the Ludwig von Mises Institute. He is the author of Defending the Undefendable and Labor Economics From A Free Market Perspective. His latest book is The Privatization of Roads and Highways.