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“In the final analysis, a riot is the language of the unheard,” Martin Luther King Jr. told a Stanford University audience in 1967.

Social media users have circulated the quotation, some using it to partially justify the violence and destruction perpetrated by some of the protesters participating in demonstrations that have swept the country over the past week. Last Saturday, King’s son posted it to Twitter.

But this analysis of riots, which King also made in a 1966 interview with 60 Minutes‘ Mike Wallace, is often taken out of context. King’s plea was for critics to condemn the social injustices motivating the riots as harshly as they condemned the riots themselves.

“I will never change in my idea that nonviolence is the most potent weapon available to the Negro in his struggle for freedom and justice,” King told Wallace.   

King made his position on violence crystal clear in that interview: “I would hope that we could avoid riots because riots are self-defeating and socially destructive.” 

Why did King consider violent protests self-defeating? At a 1968 church meeting, he told congregants that rioting makes “a right-wing takeover more likely,” arguing that “every time a riot develops, it helps [the segregationist presidential candidate] George Wallace.”

The violent clashes over the last week may have already created a backlash, with 58 percent of respondents to a recent poll saying they support the use of military force to restore order to America’s cities.

Journalists such CNN’s Chris Cuomo and recent Pulitzer Prize winner Nikole Hannah-Jones have downplayed the seriousness of property destruction and violence by some protesters, with Cuomo asking, “Show me where it says protests are supposed to be polite and peaceful?”

“Violence is when an agent of the state kneels on a man’s neck until all of the life is leeched out of his body,” Hannah-Jones told CBS on June 2, referring to the killing of George Floyd by a Minneapolis police officer. “Destroying property which can be replaced is not violence.”

But political leaders in some of the communities where the property destruction has taken place have shown that it’s possible both to acknowledge the horrors of police brutality while at the same time denouncing theft, violence, and destruction.

“This is not a protest. This is not in the spirit of Martin Luther King Jr. This is chaos,” Atlanta Mayor Keisha Lance Bottoms said in a May 30 speech following a night of destruction in her city. 

Many political and civil rights leaders of the 1960s were able both to condemn rioting and to acknowledge the legitimacy of the grievances. New York Mayor John Lindsay soothed racial tensions following King’s 1968 assassination by calmly walking the streets of Harlem with other civil rights leaders and reminding the public of the fallen leader’s unwavering opposition to violence

The city’s current mayor, Bill de Blasio, has lacked the courage to forcefully condemn both the rioting and his police force’s brutal tactics. Minnesota officials initially tried to deflect blame for the riots onto outside infiltrators before the press exposed their misinformation.

And President Donald Trump hid in a bunker and tweeted out incendiary messages about the coming show of force against the rioters.

Atlanta’s Bottoms has said the solution to many of these problems lies at the ballot box. “If you want a change in America, go and register to vote,” she said in her May 30 speech.

While voting for candidates who support policing and criminal justice reform could have a marginal impact in the long run, protesters are demanding immediate action.

When police harass and assault protesters they should be held accountable through anti-chokehold bills and by putting an end to the legal doctrine that protects them from criminal prosecution.

The internet has further decentralized activism, making today’s protests less uniform than ever before, which means that we all bear the burden of condemning the initiation of violence, no matter the perpetrator, no matter the cause.

Produced by Zach Weissmueller. Graphics by Lex Villena.

Music credits: “Bloodstain” by Royal Nature licensed through Artlist. 

Photo credits: “Bill de Blasio wearing a mask,” Kristin Callahan/ACE/Newscom; “MLK black and white portrait,” Benjamin E. “Gene” Forte—CNP/Newscom; “Ayanna Pressley at the Unity Rally, Elizabeth Warren,” CC-BY 2.0; “Justin Amash of Michigan at the 2012 Liberty Political Action,” Gage Skidmore; “Hannah Jones,” Alice Vergueiro/Abraji 

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From today’s decision by Judge John M. Younge in Hepp v. Facebook, Inc. (E.D. Pa.), which I think is likely correct (and which follows Ninth Circuit law but rejects the contrary view from two federal district courts in New Hampshire and New York):

Plaintiff is a newscaster [and co-anchor] who has worked for the Philadelphia-based Fox 29 news team since November 2010…. Plaintiff alleges that “[a]pproximately two years ago, [she] discovered through her co- workers and managers, that, without her consent, a photograph of her taken by a security camera in a convenience store in New York City was being used in online advertisements for erectile dysfunction and dating websites.” …:

• “[Her] photo was featured in a Facebook advertisement soliciting users to ‘meet and chat with single women.'”

• “[Her] photo was featured on Imgur under the heading ‘milf,’ which is a derogatory and degrading slang acronym that refers to a sexually attractive woman with young children.”

• “[Her] photo was featured on Reddit titled ‘Amazing’ in the subgroup r/obsf (‘older but still $#^@able’) and posted by a user known as ‘pepsi_next.’ There is a hyperlink for the photograph which links to the Imgur site.” …

[Title 47 U.S.C. § 230] states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider,” and expressly preempts any state law to the contrary. In other words, internet service providers are not liable for third-party content. Section 230 “creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.” Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997); see also Green v. Am. Online, 318 F.3d 465, 470-71 (3d Cir. 2003). Under the statute there are, however, certain causes of action that are specifically not barred by § 230(c), including “any law pertaining to intellectual property.” 47 U.S.C. § 230(e)(2).

“Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum.” Zeran, 129 F. 3d at 330. In fact, many courts have observed that § 230 immunity should be broadly construed so as to implement Congress’s policy choice….

[1.] Plaintiff seeks to hold Defendants liable for information provided by another information content provider…. Plaintiff does not explicitly allege that Facebook, Imgur, or Reddit created or developed the offending content (i.e., postings, advertisements, and short-looping videos that utilized Plaintiff’s image). Rather, it is reasonable to infer from the allegations in the Amended Complaint, and the exhibits attached thereto, that Defendants merely allowed the offending content to be posted on their respective platforms via third-party users.

[2.] Plaintiff’s claims seek to treat each Defendant as a “publisher or speaker” of the content posted by third parties. “The Third Circuit has held the CDA immunizes traditional publisher conduct, such as ‘deciding whether to publish, withdraw, or alter content.'” For the Defendants here, such decisions “involve deciding whether to provide access to third-party content or whether to delete the content from [their] archiv[e] or cache.” …

[3.] With respect to the CDA’s exclusion for “any law pertaining to intellectual property[,]” the Court recognizes there that there is a split of authority over the scope of this exclusion. Specifically, there is disagreement between the Ninth Circuit and some district courts over whether the CDA preempts state law intellectual property claims. Compare, e.g., Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1118-19 (9th Cir. 2007) (holding that the CDA preempted a state right of publicity claim); Enigma Software Grp. USA, LLC v. Malwarebytes, Inc., 946 F.3d 1040, 1053 (9th Cir. 2019) (“We have observed before that because Congress did not define the term ‘intellectual property law,’ it should be construed narrowly to advance the CDA’s express policy of providing broad immunity.”); with Doe v. Friendfinder Network, Inc., 540 F. Supp. 2d 288, 302 (D.N.H. 2008) (holding that the CDA did not preempt plaintiff’s right of publicity claim); Atlantic Recording Corp. v. Project Playlist, Inc., 603 F. Supp. 2d 690, 704 (S.D.N.Y. 2009) (“Section 230(c)(1) does not provide immunity for either federal or state intellectual property claims.”). {Moreover, the Court’s research has yielded no case law from any other appellate courts that has clearly resolved whether the CDA preempts right of publicity claims.} …

[This Court] finds that the reasoning of the Ninth Circuit in Perfect 10 is more consistent with the statutory text and purpose of § 230(c)…. [T]he Ninth Circuit … held that [a] defendant was entitled to § 230 immunity against plaintiff’s right of publicity claim, stating that the term ‘intellectual property’ is not defined in the statute, and that “[s]tates have any number of laws that could be characterized as intellectual property laws: trademark, unfair competition, dilution, right of publicity and trade defamation, to name just a few.” The court noted that “[b]ecause such laws vary widely from state to state, no litigant will know if he is entitled to immunity for a state claim until a court decides the legal issue.”

The Ninth Circuit further reasoned that “[a]s a practical matter, inclusion of rights protected by state law within the ‘intellectual property’ exemption would fatally undermine the broad grant of immunity provided by the CDA.”  … This Court is persuaded by the reasoning in Perfect 10….

“While the scope of federal intellectual property law is relatively well-established, state laws protecting ‘intellectual property,’ however defined, are by no means uniform. Such laws may bear various names, provide for varying causes of action and remedies, and have varying purposes and policy goals. Because material on a website may be viewed across the Internet, and thus in more than one state at a time, permitting the reach of any particular state’s definition of intellectual property to dictate the contours of this federal immunity would be contrary to Congress’s expressed goal of insulating the development of the Internet from the various tate-law regimes.” …

The Court added this in a footnote:

The Court recognizes that on May 28, 2020, President Donald J. Trump issued an Executive Order relating to Section 230(c) …, which appears to be directed at preventing censorship by online platforms such as the moving Defendants in this case. The Policy section of the Executive Order states, in part: “In a country that has long cherished the freedom of expression, we cannot allow a limited number of online platforms to hand pick the speech that Americans may access and convey on the internet. This practice is fundamentally un-American and anti-democratic…. Online platforms are engaging in selective censorship that is harming our national discourse. Tens of thousands of Americans have reported, among other troubling behaviors, online platforms “flagging” content as inappropriate, even though it does not violate any stated terms of service; making unannounced and unexplained changes to company policies that have the effect of disfavoring certain viewpoints; and deleting content and entire accounts with no warning, no rationale, and no recourse.” … Having reviewed the Executive Order and the context in which it was issued, the Court finds that it does not alter the Court’s analysis of the CDA immunity issue in this case.

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The property damage, looting, and fires that accompanied many of the protests over police abuse after the murder of George Floyd by Minneapolis police officers can create a dizzying sense of a society that is inescapably doomed. However, even worse waves of destruction have hit America before, for the same or similar reasons.

The police killing in 2014 of Michael Brown in Ferguson, Missouri, led to much urban unrest and police clashes, but the largest-scale directly analogous urban rioting came in the aftermath of the 1992 acquittal of Los Angeles police for brutally beating Rodney King after pulling him over for a driving infraction.

Like this year, the public release of a video of the police committing their crime precipitated the public rage. Those riots resulted in 50 deaths, 2,000 injuries, nearly 12,000 arrests, and 1,000 damaged buildings amounting to a billion dollars in property damage. But it also lead, over time, to reforms of the Los Angeles Police Department that made it a marginally better institution. As The Wall Street Journal reports, “Shootings by LAPD officers fell to a 30-year low last year, with officers firing on 26 suspects, compared with 115 in 1990.”

The Rodney King beating led to spillover riots in a handful of other cities, but the riots following the assassination of Martin Luther King, Jr., in April 1968 are the most apt analogy to what’s happened after the murder of George Floyd, in terms of breadth and intensity of unrest.

The nation’s capital was hard hit, with 8,000 arrests, 13 dead, over a thousand injured, hundreds of stores looted, and over a thousand fires. National Guardsmen and even members of the 82nd Airborne Division, numbering over 12,000, swarmed the city for over a week. Most analysts assume the District’s 15 percent loss of population over the 1970s can be largely attributed to the riots and their aftermath.

The unrest likely caused as much as $200 million (in contemporary dollars) in direct damage. As a result, insurance became difficult and expensive in the city for many years thereafter. While some might assume that shuttered businesses would return when the rioting stopped, it actually took decades for that to fully happen.

In 1968, Baltimore saw its streets filled with over 6,000 enforcers, from city cops to state troopers to, mostly, the National Guard. Over 250 fire alarms were reported and by the time the days of unrest were over, more than 700 people had been injured, six killed, and 5,500 people arrested; 1,050 businesses were burned, vandalized, or looted, at a cost of $79 million in damages (in current dollars). Housing values and population plunged for years afterward.

Chicago was another of the most damaged cities, with over 2,000 arrests, 48 citizens shot by police, and 11 deaths. National Guard and Army forces filled the city, where over 100 fires were set, telephone and power lines were disabled, and the city’s notoriously tough then-Mayor Richard Daley shut down streets to cars and ordered gun and ammo sales halted.

Pittsburgh also had the National Guard called in to deal with over 500 fires and over 100 businesses looted and nearly 1,000 arrests. Over the course of the post-MLK assassination riots, 125 cities saw some rioting, Army soldiers, Marines, and members of the National Guard took over multiple cities, dozens of people died, over 21,000 people were arrested, and many hundreds of millions of dollars in property damage were inflicted. Not only that, but the groundwork for the insane level of police militarization that we suffer today were laid via the Law Enforcement Assistance Administration.

The negative effects of riots, looting, and widescale vandalism echoed for decades. Researchers in a 2004 National Bureau of Economic Research paper found that “riots depressed the median value of black-owned property between 1960 and 1970, with little or no rebound in the 1970s,” and “that the racial gap in the value of property widened in riot-afflicted cities during the 1970s….Using both city-level and household-level data, we find negative, persistent, and economically significant correlations between riot severity and black-owned property values.”

It Didn’t Start (or End) in 1968

But 1968 was an amplified continuation of a pattern of urban rioting that began earlier. America suffered eight riots in 1965, 36 in 1966, 134 in 1967, leading up to the 141 riots of 1968. The Watts riots in Los Angeles in 1965, also proximately triggered by police mistreatment of African Americans, led to over 3,000 fires and 34 deaths.

Just in 1967, America saw nearly a billion dollars in property damage, thousands of people injured, and 177 people killed in riots that resulted in over 20 cases of the National Guard being called in to quash citizens.

Many of the same cities, and even neighborhoods, that experienced unrest in 1968 saw riotous destruction along with protests in the past week. Chicago suffered over 80 fires in one night, a worse one-night record than in 1968.

We are far from done tallying the damages of the riots accompanying the George Floyd protests, which saw, as the Associated Press reported, “Curfews…imposed in major cities around the U.S., including Atlanta, Chicago, Denver, Los Angeles, San Francisco, and Seattle. About 5,000 National Guard soldiers and airmen were activated in 15 states and Washington, D.C.,” and fires, tear-gassings, and police cars set on fire from Reno to Fargo to Salt Lake City. Nearly 62,000 National Guardsmen have been acting as domestic law enforcement around the country.

Cleveland, Pittsburgh (at least 60 buildings damaged along with at least 44 arrests), Grand Rapids,  Charleston, Greensboro, Louisville, Portland, and Wilmington, Delaware, are still licking untallied wounds, and massive damage has hit Seattle (property destruction worse than that city’s 1999 World Trade Organization protests).

Insurers are confident that Minneapolis, where the murder of Floyd occurred and whose police force is facing the largest public opprobrium, is facing well over $25 million in property claims now with at least 220 buildings burned, though the chamber of commerce there grimly predicts economic damage more like $1 billion. Some economists guess, in the aftermath of story after story of sad businesspeople who saw their businesses looted or destroyed the very week they returned to business from the COVID-19 shutdown, that the riots may well shave another couple of percentage points overall off U.S. GDP this year.

That America has survived similar or worse waves of urban destruction doesn’t mean we can blithely write off either the destruction or the causes with which it was connected as something we don’t need to worry about unduly, especially when we recall that the larger issue of abusive policing of minorities is still lighting fires metaphorical and real decades after 1992.

Even beyond the shorter-term costs to individuals and cities of trying to rebuild after the destruction, we know that such bouts of chaos can and likely will mean decades of bad news for businesses, homeowners, and those whose quality of life depends on reliable access to a variety of commerce, or simply a sense of basic civic peace.

Police getting away with abusing and murdering citizens extrajudicially is terrible and cannot be countenanced. Setting fires and destroying buildings and businesses in cities is also terrible and ought not to be countenanced. America seems fated for now to suffer both these terrible injustices, with no obvious path out.

The many incidents of violently riotous police actions at events protesting that very behavior makes one worry that nothing short of dismantling urban policing from the ground up will do much, though Rep. Justin Amash’s (L-Mich.) nascent effort to quash police “qualified immunity” is a decent start.

It’s also too soon to know if 1968 is the most apt historical analogy for 2020—or if this year will prove to be a redux of 1967, or even 1965, pointing toward longer, hotter, more destructive summers ahead.

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