Should News Organizations Refuse to Host Video Manifestos by Criminals?
Why Attacks On Media For Airing the Virginia Tech Killer's Video Are Ultimately Unpersuasive

By JULIE HILDEN

Wednesday, May. 02, 2007

As many readers will be aware, Virginia Tech shooter Cho Seung-Hui mailed a package including photos and video clips to NBC News in between his two shootings - after he shot two students earlier in the day, and before he shot a group of thirty students and faculty members.

NBC chose to air a small part of the video, and also to post that part on the NBC website. It received significant criticism for doing so.

Now, the video is also accessible on YouTube - where it has spawned a great deal of commentary by users on message boards, as well as via other videos. Many of those who have commented have raised the point that this kind of mass exposure is exactly what it seems Cho wanted. They've also contended that "rewarding" killers with the dissemination of their manifestos could spawn other killings.

Since the government is not involved here, in the end this is an issue of journalistic ethics or, for some of those posting on YouTube, simply of personal ethics. Someday, however, a parallel First Amendment issue might arise if a shooter decides to send material not to a media outlet, but directly to the government, and disclosure of the video is sought via a Freedom of Information Act request. The same issue would also arise, for example, if police failed to release copies of a criminal's notes or manifestos from a crime scene to the press and public, even after they had been fully processed.

I will argue in this column that First Amendment doctrine, even if not directly at issue here, can play an important role in illuminating this debate.

Hosting the Video Versus Releasing It: Separate Questions that May Have Different Answers

First Amendment doctrine holds that speech cannot be censored based on its content, however objectionable.

But should this principle be carried over into the context of private persons deciding whether to host or release a video?

Here, I think it's important to distinguish between hosting and releasing.

Any private person or organization, in my view, ought to be able to decline to host a given piece of content for any reason it chooses - including that it finds the material offensive. Deciding what to exclude from one's message is just as important - and in some cases, even more so - than deciding what to include.

That's why I'm relatively untroubled by the Don Imus firing. The highly popular Imus will doubtless find another venue to host his speech if he so chooses - ironically, a venue that will probably give him much more freedom than he previously enjoyed. As a result, everyone wins: No person or organization ends up subsidizing speech he or she dislikes, and Imus can say things he previously might have been pre-empted from saying. Is Imus a true racist, or simply an equal-opportunity offensive comedian? The best way to find out is to take off his muzzle. (For an eloquent argument for the opposite view on the Imus controversy, however, see Michael Dorf's recent column for this site.)

But what about the decision whether or not to release a video, when you are the only one who has it? This is the position NBC was in.

My view is that while NBC might legitimately have made the decision not to air the video or host it on its website, on the ground that it violated its journalistic ethics to do so, it should still have released the video so that others could have the chance to host or air it if they so chose.

Given that the video was on a subject of intense public interest, and given that reasonable minds will differ about whether it should be seen, it was correct that NBC did not take advantage of its position as a monopolist and simply lock up the video in its archives - simply because a dramatically mentally ill person had chosen to send his video to NBC in particular.

It's Highly Unlikely that Many Killers' Interest In Gaining Glory Will Be the Proverbial "Last Straw" for Them - Even If It May Have Been So for Cho

This leads to another question: If you consider hosting such a video, should you fear bearing responsibility for killings by future shooters who are after self-glorification?

I believe the answer is no. That's because I think it's extremely unlikely that the hope of posthumous glory will be the final factor that pushes any particular shooter over the edge. That "last straw" is far more likely to be a personal or professional setback, or the lack of effective counseling.

The New York Post speculated that Cho himself - "described by schoolmates as an all-night TV watcher" -- might have watched NBC's footage of shooter Robert Hyde that was aired the night before he embarked on his killing spree, and that Cho might have been referring to the footage when he remarked in his message to NBC, "You pushed me into a corner." However, major news outlets have reported that Cho had planned the killings far in advance -- purchasing his guns at least a month before; purchasing chains, used to lock the doors to the lecture hall, at Home Depot and Wal-Mart a month beforehand; and visiting several local shooting ranges to practice. Moreover, and most significantly, the photos and other material Cho sent bore file dates from days before the shooting.

With scant evidence, if any, that the hope of glorification is ever truly the "last straw" for shooters, it is far better for efforts to prevent future killings to focus on other factors. Not only might these factors end up being the "last straw," but addressing them (by, for instance, improving counseling resources) has no downside - whereas suppressing speech has a huge downside: Taking away access to videos and manifestos by the likes of Cho and the Columbine shooters deprives society of information that may help prevent future shootings from occurring.

Cho's video isn't just an attempt at self-glorification; it's a valuable document that reveals the psychology of the most destructive school shooter in our history. One might argue that only experts from the FBI and from psychiatric faculties should have access to that document. But in my view, that would be elitist and foolish.

Given that bloggers proved to be more reliable than Dan Rather regarding the alleged Bush National Guard service documents, and given that a housewife solved one of the Zodiac killer's codes, it is far too late in the day to say that laypersons will have nothing important to add.

One thing laypersons may offer is relevant experience and information: Someone who went to high school with Cho may have more insight into the video than a given psychiatrist who might examine it, because that person may have more information. Sometimes knowledge can best expertise, and with an issue of this magnitude, laypersons should be able to weigh in freely.

Distinguishing Moral Outrage From A "Last Straw" Theory: The Secondary Effects Doctrine within First Amendment Law

I believe the underlying reason for the outrage of some against NBC was simple moral disapproval of the video and its message -- which are, after all, repellent and appalling. This visceral repulsion, more than any prediction of the future, seems to have been the true spark that ignited the controversy over the video's release. But those who feel moral disapproval here are, I believe, confusing the issue: Those who host the video didn't create it, and they cannot be equated with Cho. The fact that they air the video surely does not mean they endorse it. Those who hosted, released, and viewed it, very probably feel deep moral outrage toward Cho, too. But they wanted to learn all they could about how this tragedy could happen.

The issue here parallels an interesting First Amendment doctrine called the "secondary effects" doctrine. The 1991, 5-4 decision in Barnes v. Glen Theatre is a good example of how the doctrine is applied.

In Barnes, Indiana law forbade nude dancing, but two establishments claimed a First Amendment right to present it. The Supreme Court ruled for Indiana. The majority simply and frankly stated that in its view, the State had the latitude to police public morality, as it saw it, through the anti-nude-dancing statute. In my view - and that of the dissenters - that claim is directly opposed to the key First Amendment principle that the government cannot regulate expression because of the message it sends. Here, however, I want to focus on a different argument - the one made by Justice Souter in his concurrence.

Justice Souter expressly refused to bless any moral justification for the anti-nude-dancing law. But he still voted to uphold the law -- citing, instead, the supposed "secondary effects" of the nude dancing such as "prostitution, sexual assaults, and other criminal activity."

Here, Justice Souter - usually a very strong First Amendment proponent - adopted some very dubious logic. Even after the Court's decision, the very same dancers presumably went on to perform the very same dances, but in G-strings and pasties, rather than fully nude. Were there truly customers who refrained from employing the services of prostitutes, or failed to commit sexual assaults, because of the tiny pieces of material that were now present? It seems incredibly unlikely. Indeed, if anything, one can imagine some men might turn to prostitutes whom they could, of course, see fully nude, in response to frustration at the presence of the G-strings and pasties on the dancers.

In this case, as in the case of the shooter video, I believe a claim of baleful secondary effects - effects everyone wants to avoid - is masking what is really at issue: An expression of moral outrage by members of the public and the wish to compel everyone else to share that moral outrage, by suppressing freedom of expression.

Moral outrage at the shootings is entirely appropriate; one would have a very cold heart not to feel outraged. Moreover, it is understandable if some people wouldn't host or watch the shooter video based on that outrage alone, on the wish not to have anything to do with such an appalling criminal act - and that they would try avidly to convince others not to do so for the same reason.

But masking what is ultimately a moral point in an unconvincing "secondary effects" justification is unpersuasive. Those who object to the hosting of the video should make their real point - that they consider it deeply unseemly to watch or display a video authored by a criminal in connection with a heinous crime - and not make unconvincing arguments that freedom of speech today will be the but-for cause of murder tomorrow.


Julie Hilden, a FindLaw columnist, graduated from Yale Law School in 1992. She practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes free MP3 and text downloads of the novel's first chapter.

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