Reckless Associations

57 Pages Posted: 12 Mar 2022 Last revised: 7 Jun 2022

See all articles by Jane R. Bambauer

Jane R. Bambauer

University of Arizona - James E. Rogers College of Law

Saura Masconale

The University of Arizona Department of Political Economy and Moral Science; Center for the Philosophy of Freedom

Simone M. Sepe

University of Arizona - James E. Rogers College of Law; University of Toulouse 1 - Université Toulouse 1 Capitole; Toulouse School of Economics; European Corporate Governance Institute (ECGI); American College of Governance Counsel

Date Written: March 9, 2022

Abstract

This Article provides a theoretical foundation and practical guide for a new form of liability that has proven necessary in the Internet era: the tort of Reckless Association. This tort would hold de facto leaders of informal networks responsible when radicalized members of the network cause physical harm to others. Recent prosecutions of the leaders of the Oath Keepers and other white supremacists who organized the Charlottesville protest, and rumblings of a similar prosecution against Donald Trump, demonstrate that there is a public appetite for this form of legal responsibility. To date, these prosecutions proceed on theories of incitement or conspiracy, but those doctrines are poor fits for cultural leaders, like Trump, whose media habits have created a drumbeat for increasingly paranoid thinking and action while also studiously avoiding making discrete statements that fit the heightened requirements of incitement.

Rather than forcing these cases into the old vessels, courts should recognize a new form of secondary liability for de facto leaders whose conduct within a social network has influenced, in a causal sense, the decision of network members to commit violence against individuals outside the network. This form of liability was not needed until recently because the risk that associations will devolve into dysfunction and paranoia are much greater in the Internet era than in previous information ecosystems. Moreover, this form of liability was not practical until recently because the evidence necessary to prove causation and mental state—a network analysis that relies very little on the content of speech—was not previously available. Finally, this form of liability, while certainly covered by the First Amendment, should pass constitutional scrutiny because it is narrowly tailored to harm and blameworthiness.

Keywords: torts, First Amendment, conspiracy theories, freedom of association, social media, internet law, secondary liability

JEL Classification: K13

Suggested Citation

Yakowitz Bambauer, Jane R. and Masconale, Saura and Sepe, Simone M., Reckless Associations (March 9, 2022). Harvard Journal of Law & Technology, Forthcoming, Arizona Legal Studies Discussion Paper No. 22-10, Available at SSRN: https://ssrn.com/abstract=4053964 or http://dx.doi.org/10.2139/ssrn.4053964

Jane R. Yakowitz Bambauer (Contact Author)

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

Saura Masconale

The University of Arizona Department of Political Economy and Moral Science; Center for the Philosophy of Freedom ( email )

315 Social Science Building
Tucson, AZ 85721
United States

Simone M. Sepe

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

University of Toulouse 1 - Université Toulouse 1 Capitole ( email )

2 Rue du Doyen-Gabriel-Marty
Toulouse, 31042
France

Toulouse School of Economics ( email )

21 allée de Brienne
31015 Toulouse Cedex 6
Toulouse Cedex, F-31042
France

European Corporate Governance Institute (ECGI) ( email )

c/o the Royal Academies of Belgium
Rue Ducale 1 Hertogsstraat
1000 Brussels
Belgium

American College of Governance Counsel ( email )

555 8th Avenue, Suite 1902
New York, NY 10018
United States

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