Suppose a person utters words which have as their unhappy effects violence directed at him by his angry audience, counterviolence by his friends and protectors, and escalation into a riotous breach of the peace. This is still another way of causing harm by words. Should the speaker be punished? In almost every conceivable case, the answer should be No. There is a sense, of course, in which the speaker did not start the physical violence. He used only words, and while words can sting and infuriate, they are not instruments of violence in the same sense that fists, knives, guns, and clubs are. If the law suppresses public speech, either by withholding permits in advance or punishing afterwards, simply on the ground that the expressed views are so unpopular that some auditors can be expected to start fighting, then the law punishes some for the criminal proclivities of others. "A man does not become a criminal because someone else assaults him . . . ," writes Zechariah Chafee. Moreover, he continues, on any such theory, "a small number of intolerant men . . . can prevent any kind of meeting . . . A gathering which expressed the sentiment of a majority of law-abiding citizens would become illegal because a small gang of hoodlums threatened to invade the hall." When violent response to speech threatens, the obvious remedy is not suppression, but rather increased police protection.
(Joel Feinberg, "Limits to the Free Expression of Opinion," in Philosophy of Law, ed. Joel Feinberg and Hyman Gross [Encino, CA, and Belmont, CA: Dickenson Publishing Company, 1975], 135-51, at 144 [italics and ellipses in original; endnote omitted])
