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August 25, 2013

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Alfred Brophy

Really interesting work, Sarah. I haven't thought much about this, at all. But I can think of two examples of audience-oriented crime that might be related to this. The first are the tar and feather mobs of the Revolutionary era (I guess I'm thinking about this because I pulled Pauline Maier's From Resistance to Revolution off the shelf to spend a little time thinking about how when I heard she'd passed away a few weeks back.) I guess the mob mentality amplified the desire to tar and feather. But I'm not sure whether there was ever criminal liability for the audience. I'd be curious to know that. Seems like there would have been a good incentive to punish those who witnessed as well as those who participated actively in the crime as a deterrent. (And now that I'm thinking about this, I think these kinds of questions came up in New York's anti-rent movement in the 1830s/1840s. Need to pull Chuck McCury's outstanding book off the shelf to check how/if that was handled.)

As to the presence of witnesses who maybe could have intervened but didn't, in the twentieth century some states had anti-lynching legislation that made municipalities/counties liable for lynchings in their jurisdiction. The idea was to impose liability without fault to encourage local officials to do what they could to prevent lynchings. I'm thinking that's a somewhat stronger version of the spectator liability that you refer to. That is, even if local officials weren't spectators, the local government had civil liability.

Howard Wasserman

A rejected provision of what became the Ku Klux Klan Act of 1871 (of which § 1983 was a part) would have imposed similar obligations on local officials.

In the U.S., much of what is often tagged as "bullying" is (at least arguably) protected by the First Amendment, outside the school context. So there would be a nice question whether you could punish someone for hearing and failing to report speech where the speech itself is not punishable.

Sarah Swan

Al, Howard - thanks for your comments! I hadn't thought about those examples in this context...intriguing!

Michelle Meyer

Hi Sarah -- Of possible interest: "special duty" to drivers on the road of A who texts B when A knows or "has special reason to know" that B will view that text while driving.

http://www.nj.com/essex/index.ssf/2013/08/state_appeals_court_says_texters_can_be_liable_for_distracting_drivers_but_tosses_out_claim_againt_r.html

Sarah Swan

Michelle - Thanks for sending this along! Remarkable on so many levels...

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