Consider the level of crimes that must take place for that defense to come into play, much less the additional levels of magnitude before it ceases to be an actual defense.
In our average, every-day life, it's quite possible to illegitimately harm people and escape retribution by using "I was just following orders" as a defense.
Escape retribution perhaps, but not responsibility. If your boss tells you to put a dark pattern in the sign-up page to get more personal data, you don't have to do it. If you do, you are putting getting paid ahead of doing the right thing. If someone points out that you did the wrong thing for selfish reasons, they are right, and "I was just doing what I was told" is no defense.
It's not selfish if you have a stronger need to keep the job for a non-selfish reason, and therefore you need to keep a good enough working relationship with the boss, by doing what they ask.
An example of a non-selfish reason to keep the job anyway would be you having a job being essential to the wellbeing of people you care for. Food, shelter, medicine etc. In some situations, someone might die if you refuse to do as told at work, because your income and benefits are paying for their surgery or something.
There's going to be a ethical line beyond which "no" is the right answer, but for many people "put a dark pattern in the sign-up page" doesn't cross the line into selfishness, it only crosses into an ethical dilemma, a balancing act.
> "I was just following orders" does not defend one's actions
I hope you don't take the truth of that statement to mean that the leaders who ordered the Holocaust weren't morally culpable for the deaths of 11 million if they didn't personally kill someone themselves.
The leaders who ordered the Holocaust took substantive action to ensure that their orders would be followed. They took positions of power, which meant their orders existed in a social contract that converted them to actions. They cruelly punished disobedience. And even under those circumstances, we don't absolve the people who actually did the work from blame.
If private citizen Hitler had just put an op-ed in a national newspaper calling for a Holocaust and Germany had done it on that basis, the whole of the blame would fall on Germany, who took the action, and not Hitler, who wrote an editorial.
And this is really where the "but you I just told him to kill that man, I didn't pull the trigger" argument falls apart. Because it's not the telling them which is inducing them to do it, it's that doing it is the only way for the trigger man to get paid or not get fired or killed themselves. And it's the payment, or the expected retaliation, which makes the crime. Not the speech.
> the only way for the trigger man to get paid or not get fired or killed themselves
That's not necessarily even true of many killings by order, nor is it the morally relevant part.
If I tell you to kill someone and tell you I will kill you if you don't follow through, then I am still only using words. Your claim is that if the person I threaten kills the other person, I am not morally culpable because I didn't actually engage in the retaliation I threatened and the threatening was just speech. Absolutely asinine.
I have better things to do than argue with libertarians all day, but honestly, all of these objections have been incredibly weak - it's as if you're taking the hardest possible route to defend freedom of speech.
> If I tell you to kill someone and tell you I will kill you if you don't follow through, then I am still only using words.
No you're not, you're using violence. The violence travels back in time to compel action on the part of the recipient in order to prevent your anticipated violent action. If there was no expectation on the part of the recipient of any negative consequences from not following your order, the order itself wouldn't cause them to do it and there would be no harm.
Compare the scenario where you threaten to kill someone if they don't kill someone else while enacting a play. The threat of violence isn't really there, even though the words are identical. Clearly the words aren't the source of the crime.
> The violence travels back in time to compel action on the part of the recipient in order to prevent your anticipated violent action.
So in order to defend your interpretation of free speech, I am now morally culpable for actions that "travel back in time"? If it never occurs how can it travel back in time?
What is it that causes the violence to travel back in time? If I had planned to kill the speaker if they didn't do the action, but didn't tell them (and they don't have an expectation that I would kill them) - then they killed the person, would I not be responsible?
It seems that the key action here that causes this "travel back in time" effect is speech and the expectations it produces.
Telling someone to commit murder, with the knowledge that they will carry out this act, legally fulfills the requirements of mens rea and actus reus for the crime of murder. It isn't a speech crime per se. We don't need a new law regulating anyone's speech to punish people in these events.
Convicting someone for "inciting violence" should require the same standards as any other case supposedly tying someone to a murder. For one thing you need an actual victim and make the case they caused it beyond a reasonable doubt. It gets messy (law always does) but I think that's because many people argue in bad faith, really trying to twist definitions to punish people for opinions they disapprove of.
> If it never occurs how can it travel back in time?
This is the entire premise of the law taking into account intent. If you shoot at someone in an attempt to kill them but miss, you're still going to jail.
> If I had planned to kill the speaker if they didn't do the action, but didn't tell them (and they don't have an expectation that I would kill them) - then they killed the person, would I not be responsible
In that case your intention to kill them if they didn't do it wouldn't have been the cause of them doing it (they did it without even knowing about it), so why would you be?
Their being aware of it is necessary to cause them to do it, but it isn't the part which is the root cause of the harm. It's like calling a prohibition on knowingly transferring weapons to terrorists a free speech violation because you have to call the weapons depot and tell them to ship the weapons in order to cause it to happen. The speech isn't the thing being prohibited, it's the action. The fact that the speech is necessary to cause it to happen isn't a restriction on speech, because the speech isn't sufficient to cause it to happen -- it has to be combined with some business arrangement with the weapons depot in which you e.g. pay them for the weapons they're shipping, or it doesn't happen. And it's that part which is the crime.
> It seems that the key action here that causes this "travel back in time" effect is speech and the expectations it produces.
Separate them into two different parties and see what happens.
Osama bin Laden offers a million dollars to anyone who kills a US soldier. CNN reports this fact. Someone hears it from CNN and commits the murder in order to collect the money. Is it CNN or Osama bin Laden who is guilty of the crime?
