Forthcoming in the Harvard Journal of Law & Technology
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.