The Collateral Damage of Free Speech: America’s Mass Shooting Epidemic and the First Amendment

Photo Credit: AK Rockefeller

By Nina Raj ’24

Hundreds of miles north of the Mason-Dixon line, 157 years after the end of the Civil War, the Confederate flag flies high in Buffalo, New York, my home town.  

On May 14, 18-year-old Payton Gendron took ten lives in a Buffalo supermarket, motivated by hate and white supremacy. A few miles away, a Confederate flag proudly waves from the porch of a South Buffalo home, alongside banners that read “Come and Take It” and “Liberty.” While this tableau serves as a caricature of America’s undying commitment to the First and Second Amendments, the massacre is a chilling example of how constitutional devotion can devolve into tragedy. 

Solving the mystery of why America is plagued by mass murders on an almost daily basis is not a simple task. Gun control analysis goes without saying; yet I would contend that a Free Speech lens is imperative to understanding the viral nature of the hatred that causes these massacres, as well as reforms needed for the legislation that currently fails to prevent them. 

With Buffalo in mind, I hope the First Amendment might offer some answers. 

How Could Anyone Do Such a Thing?

Gendron, like many other mass murderers, did not curate his beliefs in a vacuum. 

On the messaging app Discord, Gendron said he was inspired by Brenton Tarrant, the gunman who livestreamed his murder of 51 Muslims in an attack on two mosques in New Zealand in 2019. In November of 2021, Gendron posted to a 4chan message board, warning that “a brenton tarrant event will happen again soon.”

Unmoderated pockets of Free Speech online also inspired Gendron. His 180-page “manifesto,” which plagiarizes many of Tarrant’s ideas, credits 4chan for awakening him to the “Great Replacement” theory, and includes antisemitic memes and images. Entire paragraphs were taken directly from 4chan threads, far-right message board The Daily Stormer, and other racist websites. The bigoted and baseless Great Replacement theory that motivated Gendron claims that the government is working to replace the white, European majority of America with “outsiders” – namely, people of color and immigrants. 

“I will carry out an attack on the replacers,” Gendron wrote in a Discord message.  

Some argue that censoring hateful views on mainstream platforms like Twitter, Facebook, or YouTube only pushes extremists to  more insulated forums, or even underground. Attempts to deplatform hate speech often do enable new echo chambers of bigotry. Some would prefer to keep radicalizing conversations in spaces where they can be combated by voices of reason. But on sites like 4chan, participants are selected for their shared extremism. A desire to evade moderation spurs message boards like /pol/ (short for “politically incorrect”) that are obsessed with racial slurs, antisemitic conspiracies, and intentionally offensive language. 

Unfortunately, the Great Replacement theory has seeped into the mainstream. A groundless, hateful framework, once confined to the dark shadows of the internet, it has been parroted by prominent public figures  like author/candidate J.D. Vance and former U.S. House Speaker Newt Gingrich. Fox News host Tucker Carlson, who sounded the alarm on Democrats’ alleged plot to dilute the white electorate with “more obedient voters from the Third World,” regularly espouses the concept to his 3.4 million viewers. An Associated Press-National Opinion Research Center (AP-NORC) poll found that one in three U.S. adults fear efforts “to replace U.S.-born Americans with immigrants for electoral gains.” 

And now, Gendron’s revolting doctrine threatens to inspire copycat murderers. 

Although Twitch was able to take down his livestream within two minutes after the violence began, there was enough time for the video to be recorded and reposted. One clip accrued more than 3 million views before being removed. Links were reposted hundreds of times on Facebook and Twitter, despite moderation attempts to stop the process. To a Free Speech absolutist, erasing this disturbing footage is censorship. Either way, many experts say, like other mass shooting recordings, the video will likely never be fully erased. In other words, the internet has made recordings of mass shootings immortal. 

This was precisely Gendron’s plan. “I think that livestreaming this attack gives me some motivation in the way that I know some people will be cheering for me,” he wrote. 

For mass shooters, online media promise a certain level of infamy. Even worse, these events often have a contagion effect, where, studies have shown, the likelihood of another mass shooting is heightened for 13 days. For Gendron, watching a video of Tarrant’s mosque attack from more than three years earlier “started everything.” 

​​In the name of Free Speech, neo-Nazis on 4chan, Carlson delivering white-supremacist monologues, and those circulating Gendron’s footage or writings are all entitled to build hateful platforms. To deny their right to free expression would be “un-American.” But when calls to harm minorities are inevitably met with actual violence, it seems almost satirical to ask, “How could anyone do such a thing?” 

Though Gendron is confined to a jail cell now, the actions he immortalized on such chilling footage, his writings, and his intended message unfortunately retain their freedom to be shared and disseminated among unknown numbers of people. 

How Did We Let This Happen?

In tough-on-guns, blue-state New York, proactive gun control measures are expected to protect residents from these threats. For instance, New York’s so-called red flag law was passed in 2019 to prevent individuals with a significant risk of “being a threat to themselves or others” from purchasing or possessing firearms. But initiatives like such laws, often deemed an egregious encroachment on the Second Amendment, were not strict enough to avert the tragedy in Buffalo. 

In June 2021, in an online class, Gendron wrote about committing a “murder-suicide.” His teacher reported the incident to Susquehanna Valley Central High School and eventually to New York State Police. Though Gendron was required to complete a psychiatric evaluation, he was considered not dangerous after he said his writings were just a joke. 

Reportedly, in early 2022, shortly after his 18th birthday, he bought the AR-15 that would be used at the Tops Friendly Market. Gendron, an 18-year-old with a psychiatric evaluation on record for threatening a murder-suicide, apparently did not qualify as a sufficient threat to prohibit gun ownership under the red flag law. 

Perhaps the problem was that Gendron’s red flags came in the form of words?

“That’s where you’re battling the First Amendment. Because everyone has the right to be stupid,” said Broome County District Attorney Michael Korchak in a press conference on May 18, when asked why the red flag law had not been triggered for Gendron in his home community. 

Invoked approximately 500 times per year in New York State, such a law typically prevents those with a criminal record or a history of psychiatric illness from obtaining a gun; but neither was true of Gendron. Korchak explained that state officials’ hands are tied when the only “red flag” to be acted upon is an individual’s speech. What qualifies as a threat is often a difficult line to draw. And in America, the law largely discourages penalizing individuals for speech alone. 

To qualify as a “true threat,” or a statement that can be prosecuted even if the threatened action is not carried out, speech must meet a high (or is it a low?) standard: the message must target a particular recipient and have the explicit intent of instilling fear. The comments Gendron made while in school apparently did not meet this standard. 

After the Buffalo massacre, on June 9, New York Gov. Kathy Hochul (D) signed into law NY State Senate Bill S9465, establishing a task force to investigate “how social media is used to facilitate acts of hate” and empowering the state to seek damages for “bias-related harassment.” Senate Bill S4511A, also signed by the governor, requires social media platforms to provide accessible mechanisms for users to report content that seeks to “vilify, humiliate, or incite violence against a group” on the basis of race, religion, sex, or sexual orientation. The definition of “threat of mass harm” has been more exactly worded in Senate Bill S89B to encompass, among other circumstances, the threat to inflict “serious physical injury or death at school.” The red flag law has been strengthened by executive order since the shooting and now requires state police to file an extreme risk protection application whenever they believe someone is likely to harm themselves or others. 

But many fear these well-intentioned reforms pose a danger to free expression. Opponents have been quick to remind Hochul that hate speech is protected under the First Amendment. Others argue she is using social media as a scapegoat. Nevertheless, New York affirmed that dismantling the internet’s dangerous pipelines of disinformation is vital for preventing the next shooting. 

These efforts may soon be challenged. With the Supreme Court ruling on June 23 to overturn a different New York gun law that restricted who may carry a concealed weapon in public, the requirement of “proper cause” to bear concealed arms has been deemed unconstitutional. The justices’ ruling also questions the legality of all gun control not consistent with “this Nation’s historical tradition of firearm regulation.” This could include red-flag laws, as America has no other precedent of accounting for mental health in relation to gun ownership rights. 

Delivering the opinion of the Court, Justice Clarence Thomas noted that, unlike concealed carry standards, demonstrating “proper cause” to government agencies has never been a prerequisite to the exercise of Free Speech. In dissent, Justice Stephen Breyer argued it was imperative that the means-end scrutiny test, used in differentiating between protected and unprotected speech, be applied to the right to bear arms. Under this test, the courts could measure whether certain curtailments of constitutional rights ultimately further a compelling interest of the state. In the case of Buffalo, the “compelling interest” was to protect the lives of ten residents. The country must reckon with what constitutional sacrifices, if any, it is willing to make to promote that interest. Now, the reforms passed in the wake of the tragedy stand on an unstable judicial foundation.

A City Mourns

Those ten deaths on May 14 are felt strongly in Buffalo, especially in the African American community. Gendron drove three-and-a-half hours from his hometown of Conklin, on the other side of the state, near Binghamton, to attack that particular grocery store, because it was in the ZIP code with the highest percentage of Black population in New York State. This racial concentration itself is the legacy of segregation and redlining in Buffalo. 

Racism and racially-motivated violence plagued Buffalo long before a deranged teenager chose it to be the victim of his violent bigotry. In the 1980s, the East Side witnessed a series of gruesome murders of African Americans at the hands of what some believed to be the Ku Klux Klan. In 2012 and 2016, Black families throughout the western part of the state were the targets of cross burnings. The recent pandemic saw an increase in neo-Nazi recruitment fliers in the Buffalo  area. Just two days after the shooting, a family in the town of Niagara woke up to graffiti on their backyard fence reading “Kill All [N-word]s.” An officer at the state Department of Corrections and Community Supervision was suspended for sharing a meme that mocked Gendron’s victims on his Facebook page on the very day of the shootings.

Indeed, the “City of Good Neighbors” often fails to live up to its name. But having been born and raised in Buffalo, a city known for welcoming a large refugee and immigrant population that includes my own parents, I mean not to portray it as some haven for extremists and bigots. Sadly, white supremacy is a national issue, not a local anomaly. 

As it turns out, the Confederate flag flies high in much of the country: in online forums, within current political rhetoric, and even in this city I love. As a First Amendment advocate, I recognize that the right of  others to express those sentiments is  foundational in a free nation—but I wonder why one of the costs of Free Speech must be  the abridgement of life, liberty, and the pursuit of happiness for certain Americans. As a human being, I mourn the ten lives taken on May 14.