‘How to Blow Up a Pipeline’ and the First Amendment

What about the screen adaptation of Malm’s manifesto, now in wide release, also called “How to Blow Up a Pipeline”?

“I think in broad strokes, yes,” director and co-writer Daniel Goldhaber said over the phone.

Malm’s book criticizes climate activists’ commitment to pacifism, and argues for the adoption of strategic property destruction as a tactic. He never seriously contemplated adding a section full of specific instructions — because it simply “wouldn’t make sense,” he said. “Generally, this is something that’s up to activists on the ground to find out: What are the concrete ways that we can do anything?”

The new movie dramatizes Malm’s argument by telling the story of eight fictional activists who learn to make explosives and destroy a pipeline in Texas. The action sequences feel gritty in their physicality, and the filmmakers consulted experts, including a counterterrorism consultant (“a giant bomb nerd,” according to the director), so they could nail the fine details.

That sense of tangibility is part of the movie’s central provocation, Goldhaber said. “If we recognize that fossil fuel infrastructure will lead to the destruction of human life on Earth as we know it, and you could take a significant chunk out of it with just a couple of homemade explosives that you can make with $750 worth of materials — that presents a really interesting moral proposition.”

He and his collaborators “didn’t feel many moral qualms” about depicting bomb-building, “in part because it’s very hard. It’s very technical,” he said. The information undergirding those scenes, he added, is readily available online.

But is anything stopping some other, hypothetical book or movie from saying — not in broad strokes but directly, step by step — how to blow up a pipeline? Legal experts say that the First Amendment broadly protects speech, even speech that could or does lead to a crime, with a few carveouts.

One exception is incitement. The Supreme Court said in 1969 that there’s a difference between lawful persuasion (which is protected) and speech “intentionally directed to producing an act of imminent unlawful violence” (which isn’t).

So how do courts define “imminent”? “If there’s any cool-down time for reflection, then it’s not going to meet the imminence requirement,” said Brian Hauss, a senior staff attorney at the American Civil Liberties Union. The textbook example of incitement is someone in front of an angry mob telling them to attack a person. But broader or more abstract advocacy, even of an illegal or violent act, doesn’t count.

“Basically any form of written media is almost guaranteed not to meet the incitement test, because it allows for that cool-down period — simply by virtue of the fact that you have to buy the book and read it,” Hauss said.

In the 1990s, the family of a crime victim sued Oliver Stone, alleging that his movie “Natural Born Killers” inspired a killing spree, and relatives of a Texas state trooper killed by someone listening to “2Pacalypse Now” sued Tupac Shakur and his record label. Both lawsuits claimed incitement and ultimately failed.

‘How to Blow Up a Pipeline’: A rational if desperate pragmatism

“First Amendment jurisprudence has a very strong bias that the listener is ultimately responsible,” said Leslie Kendrick, director of the Center for the First Amendment at the University of Virginia’s law school. She likened the incitement standard to the legal standard for conspiracy: “The speaker has to have intended their words to create this kind of violence or risk. They have to have been in on it, on some level.”

What about speech that teaches people how to commit a crime, like, say — a guide full of handy tips for pipeline sabotage? Would that be protected?

Famously, in 1999, an appeals court ruled that the publisher of “Hit Man: A Technical Manual for Independent Contractors,” could be held liable for its contents aiding and abetting a crime (in that case, the murder of three people). But it was “a rather unique case,” said Hauss: The publisher said outright, in trial court, that it intended the book to facilitate contract killing.

There’s also a federal statute that specifically makes it a crime to teach or demonstrate the making or use of an explosive with the intent that the information be used “for an activity that constitutes a federal crime of violence,” said Eugene Volokh, a professor at UCLA School of Law.

“My theory is that this statute might be unconstitutional,” Volokh said. The Supreme Court has often said that free speech protection should not hinge on jurors’ and prosecutors’ best guesses about a distributor’s purpose. But, he added, “If somebody came to me, as a lawyer, and said they were publishing this book, I’d say, ‘Maybe you eventually might prevail under the First Amendment. But there is this statute. You could get into trouble.’ ”

Generally, if a work has a lawful purpose — like informing or entertaining the public — in addition to a potentially unlawful one, the First Amendment protects it.

“‘Steal This Book’ and ‘The Anarchist Cookbook’ are still on the shelves, even though those books broadly advocate all sorts of unlawful activity and provide some instruction on how to do it,” Hauss said. “Especially with speech on matters of public concern, we don’t outlaw it unless we know for a fact the speaker’s sole goal was to facilitate criminal activity.”

In reality, what often constrains creators — whether of a book, a movie or a rap song — is not necessarily the law as written, but cultural and professional norms. There’s also the looming threat of a lawsuit, which could be costly even if a court eventually tossed it.

That’s why First Amendment protections need to be robust and clearly spelled out, according to Hauss. Otherwise, many players involved in the making and distribution of media might act conservatively when assessing a legal risk.

“You know, simply because I think the First Amendment protection is really clear here doesn’t necessarily mean that it’s impossible for some kind of rogue prosecutor or motivated plaintiff to pursue a frivolous lawsuit or prosecution,” Hauss said. “The risk is very real. That unfortunately still drives how stuff plays out in the marketplace.”

“I have to say that I’m still a bit surprised that the book has been translated into quite a few languages and no legal problem has been reported,” Malm said.

When it came to the movie, Goldhaber said, “Obviously somebody could sue you at any time for anything, in this country, right? But we felt very secure in the fact that all of the bomb-making in the movie was sourced by publicly available documentation, and the fact that we’re not calling for an action. We’re telling a story about a hypothetical action that is entirely fiction.”

He and his collaborators have said at various times that they fought the initial instinct to make their version of “How to Blow Up a Pipeline” into propaganda, or a work of direct advocacy.

“If we want to be able to say, climate defense is for everybody, we have to engage in a form of the medium that, for the moment, is where most people are,” Goldhaber said. “And that means an entertaining form, a Hollywood ending, a little bit of fantasy, a little bit of wish fulfillment, a little bit of sex appeal. Mythmaking is part of what helps build a movement.”