Distasteful criminal case sheds light on liability for violent user generated content

A New York court convicted the “Cannibal Cop” trial in for conspiracy to kidnap, murder and eat women for pleasure based on postings made by the defendant on darkfetish.net. The defendant intends to appeal. The question on appeal boils down to whether the defendant’s online fantasy role play provided the mens rea (criminal intent) to conspire to commit murder. The line of judicial opinions concerning liability for deaths or injuries allegedly caused by violent media stretches back to 1950’s era censorship laws finding such laws are unconstitutional as they place a prior restraint on speech. In today’s user generated content and gamification of nearly everything, when doe role-playing cross the line to real-life crime?

The Supreme Court held that abstract advocacy of lawlessness is protected speech under the First Amendment in the seminal case of Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969). In Rice v. Paladin Enterprises, Inc., 128 F. 3d 233 (4th Cir. 1997), a Maryland court held that the First Amendment does not pose a bar to a finding that Paladin, the publisher of Hitman, A Technical Manual for Independent Contractors, was civilly liable as an aider and abettor of a triple contract murder performed according to the instructions in the Manual. Long-established case law provides that speech — even speech by the press — that constitutes criminal aiding and abetting does not enjoy the protection of the First Amendment where the defendant has the specific purpose of assisting and encouraging commission of such conduct and the alleged assistance and encouragement takes a form other than abstract advocacy.

Role-playing usually falls into the category of “abstract advocacy” but it seems in the present case that the abstraction of fantasy took a darker turn when real life people  were targeted. If a real life victim discussed on Darkfetish.net was injured based on the role playing discussions would the publisher of be liable as was Paladin in the Hitman case?