Clay Calvert: ‘Slender Man’ and the First Amendment: why it protects his creator

  Can Eric Knudsen, the creator of the fictional character “Slender Man,” be held civilly liable for the recent violence suffered by the young victim of a stabbing attack in Waukesha, Wis.?

  The answer is a definitive “no” under First Amendment principles of free speech. Those rules were created by the United States Supreme Court 45 years ago in a case that protected a Ku Klux Klan member from responsibility for engaging in racist rhetoric at a cross-burning in Ohio.

  But first a quick summary of the well-reported facts in the Slender Man incident.

  As The New York Times reported, the two 12-year-old girls who allegedly committed the savage act said that Slender Man was the impetus for the attack. They told the authorities that they believed Slender Man was real, that he lived in a mansion in the Northwoods of Wisconsin and that they needed to kill to prove themselves worthy to him. They were charged as adults with attempted murder.

  An Associated Press story on The Huffington Post describes Slender Man as a fictional “paranormal being who lurks near forests and who absorbs, kills or carries off victims. In some accounts, he targets children. He looks like a long-limbed, lean man in a black suit but has no face. In some accounts, [he] has tentacles protruding from his back.”

  Now back to the legal decision that protects Knudsen from liability to the victim and her parents. The case is called Brandenburg v. Ohio and it sets the test for deciding when speech falls within one of the very few categories of unprotected expression in the United States, namely incitement to violence. In Brandenburg, the nation’s high court concluded that the constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

  How does the Brandenburg decision possibly relate to the Slender Man incident?

  Because courts repeatedly apply Brandenburg in cases where media products like violent video games, movies with violent images and music imbued with violent lyrics allegedly inspire and cause other people to commit violent acts. It is, in brief, the case of choice that supplies the legal rule when speech products in popular culture, like the Oliver Stone movie “Natural Born Killers” or the video game Doom, supposedly inspire other people to engage in unlawful conduct.

  Why wouldn’t a possible civil case against the creator of Slender Man be successful under the rule in Brandenburg?

  For several reasons. First, Brandenburg requires that the creator of the media product actually intend for the violent act to occur. That is what is meant by the phrase in Brandenburg test quoted above that the speech must be “directed to inciting or producing imminent lawless action.” Clearly, it was never the intent of Knudsen for little girls to commit violent acts.

  Second, Brandenburg requires that the speech in question be substantially probable to produce the allegedly violent act. This is indicated by the language in the case that requires the speech to be “likely to incite or produce such action.” Here, the legal system plays the odds: Out of the many thousands and thousands of people who follow Slender Man, we know of only two girls who allegedly committed a violent act. In brief, it simply is not at all likely that any fan of Slender Man will commit violence because of him.

  We cannot play the media blame game when bad things happen in the real world. There are too many other variables at play – possible bad parenting skills readily come to mind – to hold a media product accountable.

  Ultimately, Eminem said it best in the song “Sing for the Moment”:

     They say music can alter moods and talk to you
     Well can it load a gun up for you, and cock it too
     Well if it can, then the next time you assault a dude
     Just tell the judge it was my fault and I’ll get sued

  Eric Knudsen wasn’t at fault and he shouldn’t get sued. The First Amendment makes that clear.

  About the author: Clay Calvert is a professor in the College of Journalism and Communications at the University of Florida, where he also directs the Marion B. Brechner First Amendment Project. He may be reached at ccalvert[at]jou.ufl.edu. He is a periodic columnist for the Newseum Institute’s First Amendment Center website.

  This article was published by the First Amendment Center.