Legal Commentary

Return on Investment of Thuggery

By Eugene Volokh

Some of the comments to the Thugs Win Again post point out that there might not have been any specific threats that led to the Mansfield officials? decision to kick out the an anti-radical-Islam / possibly anti-Islam and anti-Muslim speech. (The speech was on government property, but in a limited public forum that had generally been deliberately opened by the government to a wide range of political speech.) I suggested as much in my original post, in noting that the fear of violence may have stemmed either ?from specific threats related to this talk, or from threats made about other events in the past.?

Yet if anything, this possibility makes matters even more troubling. Here?s the problem: Thuggery, which is to say violence or threats of violence, can be fairly expensive for the thugs. They might get arrested, imprisoned, perhaps even killed. If an event is cancelled because someone shows up shouting threats, that?s a heckler?s veto, and it?s bad for free speech (and often unconstitutional). But at least the person making the threats can be prosecuted, and maybe future thugs would be a bit deterred, or at least less encouraged. Behavior that gets rewarded gets repeated, but behavior that gets rewarded (the thug gets what he wants in getting the event stopped) but heavily punished (the thug goes to jail) is much less likely to get repeated.

But what if all it takes to restrict speech is some anonymous e-mails that don?t lead to a prosecution, and aren?t even referred to the police? That was what happened in the Seattle Thugs Win Again incident (that one, as it happens, involving thugs disrupting an anti-Israel advertising campaign). As I said then, ?The message is clear: If you want to stop speech that you dislike, just send a few threatening messages and you?ll win. You don?t actually need to act violently, and risk punishment for that. You could send the threats anonymously, in a way that makes it quite unlikely that you?ll be punished. In fact, it might well be that ? as in this case ? the agency will not even try to get you punished. (?[N]one of the threatening communications were referred to law enforcement.?) The very fact that the speech suppressors here weren?t that awful just makes the speech suppression itself even more dangerous.?

The most cost-effective thuggery of all, though, is when your thuggery keeps on giving: When some violence or threats of violence lead government officials (and perhaps university administrators, bookstores, and the like) to suppress speech even without any specific threat, just because they know that this is the sort of speech that could lead to violence (after all, it did somewhere else). Once the original investment of risk has been made, and the climate of menace has been created, no-one even has to e-mail in a threat. Now that?s a high return on the initial investment ? a high reward, which leads to a high likelihood of repetition. (Of course, repetition might not be quite as necessary for these particular thugs, but there?ll still be some need to keep the climate menacing, plus of course one can make more threats about more kinds of things, and of course inspire still others in other political movements who will see that a little bit of violence can go a long way.)

Now of course I sympathize with the officials who have a duty to protect the public. I understand why they are so willing to try to prevent violence ? even a small risk of violence ? that they suppress the speech that the violent people want suppressed. My point is simply that this is a strategy that provides some short-term gain but creates a great deal of long-term damage, as thuggery becomes more profitable and therefore more common.

Full post as published by The Volokh Conspiracy on March 28, 2011 (boomark / email).