Speaking From the State: Why Officials Who Legitimize Violence Must Be Held Accountable

AG MAYES AND MANY OTHER SOCIALISSTS ARE PREACHING VIOLENCE FORM BEHIND THE SHIELD OF LAW. LET'S CHANGE THAT

A free society has to protect speech—even ugly, provocative speech—because the alternative is worse. But there is a difference between a private citizen mouthing off and a public official with coercive authority speaking from the podium of the state. When the speaker is a governor, mayor, police chief, or attorney general, their words can function less like opinion and more like operational guidance—especially on questions of force, “self-defense,” and when violence is “justified.”

Right now, our legal system is built to avoid holding speakers liable for downstream misconduct by third parties. That makes sense as a default rule. But it creates a dangerous blind spot: powerful officials can use rhetorical ambiguity to “lean toward” violence without formally ordering it—then walk away from the predictable consequences. If we want deterrence and public safety, that needs to change.

The doctrine gap: why today’s law lets officials escape accountability

Under modern First Amendment doctrine, advocacy is generally protected unless it satisfies the stringent Brandenburgincitement test: the speech must be directed to producing imminent lawless action and likely to produce it. That standard is intentionally demanding because the Court fears chilling political speech. Congress’s constitutional commentary on incitement tracks the same basic idea.

Civil liability is also hard to impose. NAACP v. Claiborne Hardware—a leading Supreme Court case on when speakers can be held responsible for violence that occurs around a political movement—emphasizes that protected advocacy cannot be converted into damages liability absent a strong showing that a leader authorized, directed, or ratified specific violent conduct.

These rules are protective for good reason. But they are also easy to game. A sophisticated official can speak in “lawyerly hypotheticals” that are foreseeably interpreted as a green light—and later claim, “I wasn’t encouraging anything; I was just describing the law.”

Meanwhile, the public-law pathways that might address governmental responsibility are incomplete. The Supreme Court has held the Constitution generally does not impose an affirmative duty on the state to protect people from private violence (DeShaney). Plaintiffs try to route around that through the “state-created danger” theory (the idea that the state can be liable when it affirmatively creates or heightens a danger), but it is inconsistent across circuits and doctrinally unstable.

And even when a claim can be pleaded, immunity doctrines are formidable. Qualified immunity often shields officials from damages unless they violated “clearly established” law.

Result: the current framework heavily protects the speaker—even when the speaker is the state’s own authority figure and the topic is lethal force.

The missing principle: “foreseeable reliance” on official statements about violence

We already recognize, in tort law, that words can create liability when someone reasonably relies on misinformation and physical harm results. The Restatement (Second) of Torts § 311 states that one who negligently gives false information can be liable for physical harm caused by action taken in reasonable reliance, including harm to third parties the speaker should expect to be endangered.

If we can hold a person liable for negligently misleading someone about a physical hazard, why is it categorically off-limits to hold a powerful official accountable for negligently (or recklessly) misleading the public about when violence is lawful—especially when the official’s role makes reliance predictable?

This is not a call to punish political dissent. It is a call to draw a bright line around a narrow category of conduct:

Official, authority-backed statements about the lawful use of violence, delivered in a manner that foreseeably invites third parties to commit violence, should carry civil liability when violence predictably follows.

A workable standard that respects the First Amendment

If you want accountability without turning courts into “speech police,” you need a test that is tight, role-specific, and keyed to foreseeability—not ideology. Here is a standard that can be enacted at the state level as a civil cause of action(with carefully limited damages), and used in ethics/discipline systems even where immunity blocks money damages:

Proposed “Official Reckless Endangerment by Public Statement” testA public official acting in an official capacity is civilly liable when all are shown:

1. Authority context: The statement was made using indicia of official authority (official interview, press conference, official social media, or as part of official duties).

2. Violence nexus: The statement concerned when violence or lethal force is legally justified against identifiable persons or classes (e.g., law enforcement, political opponents, specific groups).

3. Reckless ambiguity or misstatement: The statement either materially misstated the law, or presented it in a way that a reasonable official would recognize as likely to be interpreted as authorization for violent action.

4. Foreseeable reliance: It was reasonably foreseeable that listeners would treat the statement as a cue or cover for violence.

5. Causation with guardrails: Violence occurred within a reasonably proximate time and context such that the statement was a substantial factor—without requiring proof of a direct “order.”

This is not radical. It borrows the mens rea sensibility the Supreme Court increasingly requires in speech-adjacent criminal contexts. For example, in Counterman v. Colorado, the Court required at least recklessness regarding the threatening character of speech in “true threats” prosecutions. A similar recklessness threshold can be used here, but confined to official-capacity statements about violence and legality.

“But won’t immunity wipe this out?”

If the goal is real deterrence, the reform has to be designed around immunities, not pretend they don’t exist.

Practical options:

• State-law cause of action + limited waiver: Many states can waive immunity by statute for particular categories (often capped). The statute can cap damages, require clear-and-convincing proof, and allow recovery primarily for direct victims.

• Insurance/indemnification alignment: Permit recovery up to the limits of applicable state liability coverage, reducing fiscal shock while still creating consequences.

• Ethics and removal mechanisms: Even if damages are capped, an official finding of “reckless endangerment by statement” can trigger mandatory referral to a state ethics body, bar disciplinary counsel, or legislative censure.

• Injunctive relief: Allow courts to order prompt corrective statements where an official has materially misstated violence-related law, reducing the chance of further harm.

Why this is not “criminalizing speech”

This framework is civil, narrow, and tied to (1) official authority, (2) violence, and (3) recklessness/foreseeability. It leaves Brandenburg intact for criminal incitement. It respects Claiborne Hardware’s protection for political advocacy and association while still allowing liability when an authority figure uses their office to cultivate foreseeable violence.

In other words: it does not say “you can’t say controversial things.” It says:

“If you speak from the state’s authority about when violence is justified, you have a duty not to do it recklessly.”

That is not censorship. It is governance.

The public interest: deterrence, clarity, and safer streets

Officials in power already enjoy structural advantages: a microphone, institutional credibility, and the ability to frame legality for millions of people who are not lawyers. With those advantages should come responsibility. If an official chooses to skate near the edge—using innuendo, hypotheticals, or “legal talk” that predictably gets turned into “permission”—then they should bear a share of the consequences when someone takes the hint and blood is spilled.

The law can protect free speech and protect the public—by acknowledging what everyone already knows: when the state speaks about violence, it is not “just speech.” It is power, and power should be accountable.

ENDNOTES:

1. Brandenburg v. Ohio, 395 U.S. 444, 447–49 (1969).

2. U.S. CONST. amend. I; see also Incitement to Lawless Action, CONG. RSCH. SERV., CONSTITUTION ANNOTATED,https://constitution.congress.gov/browse/essay/amdt1-7-5-4/ALDE_00013805/ (last visited Jan. 24, 2026).

3. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 927–28 (1982).

4. DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 195–97 (1989).

5. Erwin Chemerinsky, Government Liability for Failure to Protect, 45 DEPAUL L. REV. 363, 370–82 (1996).(Note: This is the canonical cite used in courts; it covers the “state-created danger” doctrine even when newer PDFs are circulated.)

6. RESTATEMENT (SECOND) OF TORTS § 311 (AM. L. INST. 1965).

7. Counterman v. Colorado, 600 U.S. ___, slip op. at 9–14 (2023).

8. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

9. Frederick Schauer, Fear, Risk and the First Amendment: Unraveling the “Chilling Effect”, 58 B.U. L. REV. 685, 693–701 (1978).

10. Leslie Kendrick, Speech, Intent, and the Chilling Effect, 54 WM. & MARY L. REV. 1633, 1649–55 (2013).

11. United States v. Sineneng-Smith, 590 U.S. ___, slip op. at 3–4 (2020) (warning against judicial distortion of speech doctrine while reaffirming narrow tailoring).