People are calling it a sad statement about social media. No question: it is.
Given that live broadcast via social media is here to stay, with Facebook as just the beginning, there's really no easy way to prevent the next fame-hungry criminal from simulcasting a senseless act of violence.
But there is a way to do something about it: Use the law to deter this sort of depraved predator. We can criminalize the criminal's act of broadcasting his crime.
The sad truth is killers have long sought the media spotlight — including live television — well before the advent of Facebook, the iPhone, or even the Internet.
Do you know who the first live television murder victim
was? (Hint: It happened in the early sixties. And you've definitely heard of him before.)
It was Lee Harvey Oswald, John F. Kennedy's assassin. But he appeared in the TV shooting as a victim -- not as the killer. After his capture, on November 24, 1963, Oswald was being perp-walked through Dallas police headquarters past live television cameras. Jack Ruby emerged from the crowd and fatally shot him. The images went "viral" in newspapers and on TV long before going viral was a thing.
Jack the Ripper did not have Snapchat or Periscope in the late 1880s, so he mocked London law enforcement with handwritten letters. One of these missives
dared the authorities to "Catch me when you can," and included part of a victim's kidney.
In short, for as long as there has been an audience — digital, analog, even cave drawings — a certain species of assailant has been motivated to maximize the impact on society of his or her acts of violence by making sure as many people as possible will know about them. The Internet has just, unfortunately, opened up a vast audience.
Ask anyone who works in the juvenile justice system. Kids were early adopters of viral violence videos. Sometimes it's a planned assault on a victim in the hall at school (a co-conspirator tapes the sucker punch of the victim), or a fight that breaks out in the lunchroom, recorded with phones by other kids, as they egg on the combatants so they can get better video out of the event.
When it gets into the realm of a horrendous crime like the recent shooting, what is to be done? As heretical as it is for a criminal defense attorney like myself to say, deterrence could help. More criminal legislation: enhancements, penalties, mandatory minimums.
And how the crime and its victims are legally framed is key. Whether it's murder or simple assault, acts of violence that are also posted online create additional victims in the audience: the public at large. Broadcasts of intentional violence intimidate a civilian population, just as terrorism does.
Additionally, the law has long targeted those who seek fame or profit
from their crimes. In 1976, David Berkowitz went on a killing spree in New York that left six people dead. While the murders were still unsolved, Berkowitz taunted the police and media with letters he signed "The Son of Sam." Soon after his capture, New York passed legislation to prevent any profit from the sale of killers' stories.
The challenge here is that criminalizing Facebook broadcasts of one's crimes does potentially infringe upon one's freedom of speech about those crimes. The US Supreme Court held that
the original Son of Sam law ran afoul of the First Amendment, because the suppression of speech was not narrowly tailored enough.
However, the First Amendment has plenty of limits, and today, almost all the states and the federal government have laws prohibiting those criminals who plan to profit from their crimes from doing so. The ability to profit still shouldn't be constitutionally-protected.
A law would look like this: It would provide increased penalties for crimes in which the perpetrator intentionally causes the acts to be recorded, and then additionally places them into the social media public forum. It's easy to define, and even easier to prove with the actual video evidence.
It's a tougher question whether "killing videos" could be additionally penalized as obscenity. This is because the term "obscenity" generally applies
to depictions of sexual acts. The Supreme Court has held
that violence alone is not obscenity.
On the other hand, obscenity may extend to deviant acts
that are not sexual, and images of extreme cruelty alone could possibly be obscene, as evidenced by a case involving videos of animal cruelty
. Indeed, "animal crush videos" — which are every bit as horrific as they sound — may be outlawed,
even if sexual activity is not depicted.
Criminalizing the broadcast of crimes like Robert Godwin's shooting death is doable. It won't prevent these attacks, but it will deter them. Unfortunately, the technology for personal broadcasts will only continue to improve and increasingly entice fame-hungry killers.
The perverse upside is that social media creates a treasure trove of evidence: the criminals of social media may harm the society that views them, but they often assist the authorities in prosecuting them.