Free Speech and Anti-Democratic Violence

The resurgence of far-right extremist groups—like “sovereign” militias, white supremacists, and avowedly fascist gangs—has exposed the First Amendment’s vulnerabilities to the “leaderless resistance” model of extremist organizing. This model, first popularized by white supremacist Louis Beam, specifically aims to insulate extremist leaders from liability when their followers engage in violence. It does so through fragmented structures and coded messages: Leaders use indirect references in speaking to disparate followers, without specificity (of targets) or immediacy (of corresponding violence), as required, e.g., for “incitement” under Brandenburg v. Ohio. This Article makes three contributions.

First, it articulates this “gap” with precision, drawing upon recent, mostly overlooked cases as clear referents for explaining the limits of extant free speech exceptions. Second, it reformulates Professor Clay Calvert’s recent proposal for opening extremist group leaders to vicarious liability, including a discussion of how to avoid overly broad adjustments that may impinge on other kinds of speech. Third, it presents an overarching critique of theoretical foundations in America’s free speech tradition which deserve more-sustained consideration from scholars and practitioners alike, including several fundamental—and potentially irreconcilable—tensions between justificatory theories which have been treated as complementary.