74. The Jurisprudence of Instructional Violence, pt. 2
From the Hit Man Manual to Christchurch
Rice v. Paladin once seemed to answer a straightforward question: when speech is “purely functional”—when it gives step-by-step instructions for committing a crime—it can be treated as conduct, not advocacy. The Court suggested that words can sometimes behave like actions. But that line was drawn in 1997, in a world where “instruction” meant a printed book and “audience” meant whoever happened to find it.
The problem now is scale and medium. The internet has turned what Rice imagined as a narrow category into a sprawling ecosystem.
After the Oklahoma City bombing—the deadliest act of homegrown terrorism in U.S. history—researchers discovered that details about the device Timothy McVeigh used didn’t fade into obscurity. They spread. Online forums dissected the chemistry, archived the diagrams, and in some corners even refined them. The digital world became an inadvertent workshop: Usenet posts, archived “recipes,” entire libraries of tactical manuals explaining how to make explosives or avoid detection.
This wasn’t just fringe curiosity. It was a shift in the architecture of risk. A single instruction could now replicate itself endlessly across servers, continents, decades.
Transnational extremist groups understood that early. Jihadi magazines like Inspire didn’t merely preach ideology; they published operational instructions—the kind of “make a bomb in your kitchen” guides that were designed to turn a sympathizer into an actor. These were not abstract appeals. They were practical schematics wrapped in propaganda, a fusion of narrative and know-how intended to lower the threshold for violence. Once released, these materials scattered across encrypted channels, screenshot by screenshot, repost by repost.
The Christchurch mosque massacre in 2019 showed what this convergence can produce. The gunman wrote a manifesto, posted it online, and livestreamed his own attack. It wasn’t just an act of violence but a broadcast strategy. The internet became stage, amplifier, and archive. The shooter used platform dynamics to recruit, instruct, and perform, collapsing the distance between participation and observation. The event revealed how easily modern attackers can weave together ideology, instruction, and spectacle, leaving behind digital blueprints that others might follow.
Today, counterterrorism reports across Europe and elsewhere echo the same concern: increasingly, the materials fueling home-grown plots are not fiery sermons or ideological tracts but things that look very much like user manuals. Operational guides. DIY bomb instructions. “How-to” posts passed through encrypted chats. The digital environment makes facilitation cheaper, faster, and profoundly decentralized. One document, written once, can circulate indefinitely, giving technical capacity to thousands who would never have acquired it on their own.
This is where Rice feels both prescient and outdated. It drew a line between persuading and performing, between expressing a belief and teaching someone how to carry it out. But the internet blurs that line. Digital platforms collapse speech and action into a single moment: a manifesto with embedded instructions, a livestream that gives tactical cues, a chat room that walks a stranger through weapon modifications in real time.
The doctrinal question that once seemed narrow now feels uncomfortably expansive: When instruction is instantaneous, anonymous, and infinitely replicable, is it still speech in the constitutional sense? Or has it crossed into something the law should be permitted to treat as action?
The challenge for courts and lawmakers is no longer hypothetical. Treating this material as protected speech risks allowing instructional blueprints for violence to proliferate unchecked. Treating it as conduct risks sweeping in commentary, analysis, art, journalism, or political debate that brushes up against technical detail.
Rice asked whether a book could be conduct. The digital age asks something harder: when words can instruct, accelerate, and operationalize harm at scale, how do we draw lines that preserve constitutional freedoms without pretending that platforms and pamphlets have the same power?
What’s changed today is that the internet massively amplifies both reach and immediacy. A single post or video can instantly equip thousands with the tools to cause harm, collapsing the time and distance that once separated advocacy from action. Still, expanding the definition of conduct too far poses real dangers. Governments could overreach, labeling controversial or unpopular speech as “dangerous.” The challenge then is to craft a narrow standard that targets operational facilitation, speech whose sole and intended purpose is to enable violence, without chilling legitimate political or academic discussion. In my view, perhaps the evolution we need is not in the abandonment of “imminence” or “intent,” but in how those terms are interpreted in a nuanced context. When someone deliberately publishes instructions designed for a dispersed audience of potential attackers, that may satisfy intent even without a specific listener. Imminence, meanwhile, might need to account for technological immediacy and the resulting harm that can be instantaneous once the information circulates. Ultimately, the First Amendment must continue to shield ideas and debate but not what essentially become blueprints for harm disguised as ideology.