Did Joshua Feuerstein Engage In Actionable Incitement Against Planned Parenthood? Probably Not.

Joshua Feuerstein, a self-styled and much-clicked online evangelist, may be just another self-pleasuring troll, generating outrage for laughs. Or he may be a professional troll, generating outrage for advertising revenue. Or perhaps he's just a useful idiot, serving as the embodiment of the most ridiculous attributes of his "team" — like when his nonsensical rant about Starbucks' cups was used by some (including yours truly) to characterize broad swaths of Americans.

Or perhaps he's all three.

The question is pertinent because the internet is aflutter over him again, this time over a video rant which some argue constituted unlawful incitement of violence against Planned Parenthood employees.

I'm a sucker for analyzing whether a statement is, or isn't, defamatory, or a true threat, or actionable incitement. That's my hang-up, and the reason that I'm addressing the question. I'm not suggesting that Joshua Feuerstein is someone to be taken seriously, or that he's fairly representative of anyone other than — sort of — Joshua Feuerstein.

So: let's get to the meat of it. Months ago, Feuerstein posted a video he has since sent to the memory hole. In response to the public outrage over dentist Walter Palmer getting his jollies shooting a lion, Feuerstein ranted that folks are less upset about millions of abortions per year. This is true, but also banal, no matter how you view abortion: our society is often more upset about cruelty to animals than it is about inhumanity to people, as I've mentioned before.

In the course of his rant, Feuerstein graphically characterized abortions and said "I say, tonight, we punish Planned Parenthood. I think it’s time that abortion doctors should have to run and hide and be afraid for their life." As he says this the camera focuses on his face, reclined on a pillow in bed. Online outrage is very fatiguing.

Other people in the online outrage game have demanded that Feuerstein be prosecuted for incitement. Take this gentleman, online personality "Dusty." Dusty is also bearded and angry and deeply invested in video self-promotion. You can tell them apart because Dusty is ranting while seated on an unmade bed instead of lying down on one. Perhaps he shot his video earlier in the day than Feuerstein did. Anyway, Dusty is an Internet Lawyer and explains why Feuerstein's video is not protected speech.

I'm an Internet Lawyer too, I guess, and I don't think it's quite as clear as Dusty.

Was Feuerstein's Statement Actionable Incitement?

The First Amendment does not protect incitement to lawlessness. But incitement, for First Amendment purposes, isn't merely advocating or suggesting lawlessness. The First Amendment protects, for instance, arguments that lawbreaking or violence are morally justifiable or advisable. Advocacy of violence only rises to the level of unprotected incitement when — in the words of the Supreme Court in the key case Brandenburg v. Ohio — it is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Otherwise, "constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation."

Let's leave aside for the moment whether Feuerstein intended to provoke violence. I find his meandering denials unconvincing. The bigger barrier to liability is the requirement that his video be likely to cause imminent lawless action. That's a tough sell. Imminent, for Brandenburg purposes, doesn't mean "in a few months once some nut has thought about it." It's intended to capture the danger of a firebrand whipping up an angry crowd with the means and target of violence close at hand. That's lacking here — as reflected by the fact that Feuerstein's followers did not, in fact, "punish" anyone "tonight."

It may sound logically unsound to conclude that violence wasn't likely because it didn't occur, but it's legally sound — it's the way courts look at incitement cases. For instance, in NAACP v. Claiborne Hardware Co., the Supreme Court applied the Brandenburg test to protect a fiery speech by an NAACP official who suggested that African-American violators of a local boycott should be attacked. The Court said:

The emotionally charged rhetoric of Charles Evers' speeches did not transcend the bounds of protected speech set forth in Brandenburg. The lengthy addresses generally contained an impassioned plea for black citizens to unify, to support and respect each other, and to realize the political and economic power available to them. In the course of those pleas, strong language was used. If that language had been followed by acts of violence, a substantial question would be presented whether Evers could be held liable for the consequences of that unlawful conduct. In this case, however — with the possible exception of the Cox incident — the acts of violence identified in 1966 occurred weeks or months after the April 1, 1966, speech; the chancellor made no finding of any violence after the challenged 1969 speech. Strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases. An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech. To rule otherwise would ignore the "profound national commitment" that "debate on public issues should be uninhibited, robust, and wide-open." New York Times Co. v. Sullivan, 376 U.S. at 376 U. S. 270.

So: absent evidence that Feuerstein's video actually led to violence, or absent very strong evidence that the video was made in circumstances where listeners were standing by ready to commit immediate violence, it is probably not unlawful incitement outside the protection of the First Amendment.

Was Feuerstein's Statement A True Threat?

Saying that Feuerstein's video wasn't actionable incitement doesn't end the analysis. Sometimes courts analyze calls for violence as threats rather than as incitement. Notably, in Planned Parenthood v. American Coalition of Life Activists, a deeply divided en banc panel of the United States Court of Appeal for Ninth Circuit upheld a judgment under the Freedom of Access to Clinics Entrances Act (FACE), 18 U.S.C. § 248, against a group that had posted "wanted posters" of abortion providers. Rather than engage in incitement analysis, the court applied true threat analysis — possibly because FACE speaks of threats rather than of incitement. The court found that the wanted posters met the then-prevailing definition of a true threat — "a statement which, in the entire context and under all the circumstances, a reasonable person would foresee would be interpreted by those to whom the statement is communicated as a serious expression of intent to inflict bodily harm upon that person."

In the wake of the Supreme Court's recent decision in Elonis v. United States, it's not clear whether modern true threats analysis also requires that the defendant intended their statement to be taken as a threat, or at least was reckless about its impact.

Feuerstein's video rant probably isn't a true threat. Leaving aside the fact that Feuerstein delivers his broadside with his head on a pillow, and leaving aside the fact that he's a notorious loudmouth whose past rants have not produced (known) violence, his comment doesn't carry any of the true threats indicia that the Ninth Circuit faced in the "wanted posters" case — he didn't attempt to refer to or invoke other acts of violence against abortion providers. Similarly, he didn't single out any Planned Parenthood employee, let alone provide details about how to find them, which is what got white supremacist Hal Turner convicted on a true threats theory.

I wouldn't blame anyone who felt frightened by Feuerstein's video, especially if they worked for Planned Parenthood. I think he's at best indifferent to the impact of his words. I suspect he meant to cause fear and is simply too much of a craven to admit it now. But the First Amendment provides a rather wide and robust buffer zone for speech that winds up protecting a lot of despicable behavior. Some people will always cavort in the margins.

In short: no, in my opinion Feuerstein's video was probably not actionable.