COMMENTARY: Weighing public interest against an interested public

By Jacob Kahn

Jacinda Arden was a name unknown to many Americans prior to the events of March 15, 2019. Unfortunately, Prime Minister Arden's name is now well known to people around the world, as the strength and solidarity she has displayed becomes the subject of much praise. One name that is not well known, and with any luck never shall be, is that of the man who perpetrated the Christchurch mosque shooting. Prime Minister Arden has made a high priority of denying the shooter the notoriety he, like so many terrorists before him, have obviously sought. The effort to block terrorists and mass murderers from becoming famous is ethical for a number of reasons, not least of which is that studies have shown doing so may help prevent the rise of copycat killers. By denying these monsters the publicity they seek, countries may actually reduce the likelihood of another attack.

Prime Minister Arden has enjoyed profound support in her efforts, from New Zealand's telecoms, journalists, and even the public. Beyond her own borders, Arden appears to have garnered international support for her movement to not speak the name of the terrorist. There seems to be a growing sentiment that America should follow suit, by also clamping down on the names of future mass murderers. Support for this notion is nonpartisan. It is not based in any argument pertaining to the second amendment. In fact, the FBI has mounted a rather unsuccessful "Don't Name Them" campaign, the purpose of which is to deny notoriety to mass murderers, for all the reasons listed above. As members of Congress might contemplate how the legislature could step in and muck things up, or how the Supreme Court will then have to adjudicate the first amendment challenge of a lifetime, some citizens would urge a different approach.

The issue with the "Don't Name Them" campaign is that it is a slippery slope. The idea is to conceal from the public the names of terrorists/mass murderers, so as not to reward the perpetrators, and more importantly, to discourage copycats. However, this presents major logistical challenges in a country founded on, among other things, a need for governmental transparency. Just how far should the government go to conceal a name? Closed-door court proceedings? History has shown that to be a recipe for disaster. Gag orders for local police? Absolute control over the sharing of information regarding the perpetrator's name over the internet/social media? A moratorium on news media? One can see how a well-intentioned policy of protection could rapidly devolve into a constitutional crisis. The fact is that censorship, no matter the righteousness of the underlying motivation, remains incompatible with the law of the land in the United States.

Furthermore, there remains a question of the threshold of magnitude for a crime to reach the level of "Don't Name Them." If someone shoots 50 people, clearly they fall within the category that the "Don't Name Them" movement has set out to silence. What if they shoot only seven people? Do we hide their name from the public? What if they shoot only one other person? What if their crime does not even reach the level of murder, rather they have committed a rape, or a number of assaults? At what point does the need to deny fame to criminals outweigh the public interest in transparency? Should Americans never have learned the name Osama bin Laden? Should Michiganders not know the name Larry Nassar? Above all else, who in the world could possibly be qualified to draw these lines and make these determinations? Implementing the appropriate regulations for a legally binding "Don't Name Them" statute would require a level of omniscience of which our legislature (Lansing or D.C., take your pick) falls far short.

How then could our elected officials further the cause of reducing copycat killers, without impinging on our freedom? The answer lies in a non-binding resolution. When Congress comes together in a bipartisan fashion, Americans take notice. So rare is it for all 535 members of Congress to agree on something, that when it does happen, the public tends to pay attention. By passing a resolution urging telecoms, social media giants, news publications, and the general public to refrain from granting infamy to the name and face of mass killers, Congress could make a tangible difference without overstepping its mandate. It would be nice if some of the thoughts in all our countless "thoughts and prayers" (Parkland, Pulse, Aurora, Sandy Hook, etc., etc., etc.) actually manifested into at least a symbolic action. It's certainly a place to start.

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Jacob Kahn is an incoming 1L student at Wayne State University Law School. He received his bachelor's in political science at the University of Michigan-Dearborn. He works as a process server and law clerk at the Law Office of Anthony Wayne Kahn. His primary interest in the legal field is the continuing coevolution of law and technology.

Published: Fri, Apr 12, 2019

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