A Constitutional Defense of Violent Rhetoric
By Trevor Timm
Last month’s tragic event in Tucson, where Arizona Representative Gabrielle Giffords and eighteen others were shot by a madman, have led to an increased focus on inflammatory rhetoric in the media and political sphere, with much of the attention centered around Sarah Palin and some of her past, controversial actions. Most notably, she has been intensely criticized for a campaign map on her website that placed cross-hairs over twenty Congressional districts across the United States, including Rep. Giffords’. This, along with other gun-tinged phrases she has used, such as “Don’t Retreat, Reload,” have led many to assign blame to her and others who traffic in overheated political speech. Some critics have gone further and questioned whether what Ms. Palin has said is illegal incitement of violence, or if it’s not, whether it should be.
In the days following the attack, Rep. Bob Brady (D-PA) announced he would introduce a bill to Congress “making it a federal crime for a person to use language or symbols that could be perceived as threatening or inciting violence against a Member of Congress or federal official.”
“You can’t put bulls-eyes or crosshairs on a United States congressman or a federal official,” Rep. Brady said. “I understand this web site that had it on there is no longer in existence. Someone is feeling a little guilty.”
Asked about popular support for his bill, Rep. Brady said, “Why would you be against it?”
Well, for one reason, it would almost certainly violate the Constitution.
In the 1957 case Yates v. United States, the Supreme Court ruled that the “advocacy of forcible overthrow of the government as an abstract doctrine” was permitted under the First Amendment. Essentially, the Supreme Court ruled that a general philosophy calling for violence, even the violent overthrow of the government, is permissible as long as the person or organization making such call did not actively organize and advocate a specific plan to overthrow the government. For the speech to be illegal there must be a “clear and present danger” to those it is directed towards. Even Ms. Palin’s worst transgressions never led to her concretely calling for violence against the government or its representatives. In fact, despite her penchant for controversy, she has denied these images were ever intended to invoke even the thought of violence.
Speaking of controversy, Wikileaks founder Julian Assange has also laid partial blame for the Tucson tragedy at Sarah Palin’s feet, saying “Those who call for an act of murder deserve as significant share of the guilt as those raising a gun to pull the trigger.”
Wikileaks issued a press release stating that more overt statements coming from Ms. Palin and others involving Wikileaks’ First Amendment fight to publish classified documents has already reached the level of criminality. Ms. Palin has previously said that she wanted the United States government to “Hunt down the Wikileaks chief like the Taliban,” implying that Mr. Assange was a terrorist and deserves to be killed like members of al-Qaeda. Other prominent columnists and politicians have made similar remarks.
“We call on US authorities and others to protect the rule of law by aggressively prosecuting these and similar incitements to kill,” the Wikileaks press statement said. “A civil nation of laws cannot have prominent members of society constantly calling for the murder and assassination of other individuals or groups.”
But just as many Wikileaks detractors, including Ms. Palin, erroneously contend that publishing classified information is a crime, Wikileaks supporters should know that the same First Amendment that protects Wikileaks’ right to publish has been interpreted by the Supreme Court to allow individuals to advocate for violence against others—even directly—so long as the statements aren’t likely to incite an immediate act, no matter how deplorable the statement may be.
In 1963, the Supreme Court went even further than Yates and addressed actual advocacy (not just abstract) of a violent act in the seminal case Brandenburg v. Ohio. Brandenburg involved threats made by the Klu Klux Klan which were reported on by a newspaper. The Court ruled that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” In other words, for advocacy of violence to be punishable under the law, the statement must be 1) intent to incite violence, 2) a likelihood of producing illegal action, and 3) the likely act must be imminent.
This is a very hard test to meet. Hal Turner, a right wing shock jock from Connecticut known for his racist and anti-Semitic views was recently convicted and sentenced to 33 months in jail for threatening the lives of three federal judges, and his case shows the type of behavior necessary for a conviction. As Wired.com recounts, he posted this message online:
Let me be the first to say this plainly: These judges deserve to be killed. Their blood will replenish the tree of liberty. A small price to pay to assure freedom for millions.
And he also “posted addresses, photos, maps and other identifying information about Chief Judge Frank Easterbrook and Judges Richard Posner and William Bauer,” satisfying the likelihood and imminent prongs of the Brandenburg test.
It should be noted that there is also a legal difference between a direct threat to an individual and advocating that others be violent toward the same individual. The difference is slight, but important.
Direct threats, of course, are already illegal. The difference can be seen in the recent example of one of the victims of the Tucson shooting being arrested at a town hall meeting for telling a Tea Party activist “You’re dead” (if he intended to commit the crime himself), as opposed to saying generally “I wish you were dead” or “I wish someone would kill him.” One form is protected, the other is not.
While people are understandably upset that political debate has increasingly included violent imagery and rhetoric, the proper response is not more restrictive speech laws. The real remedy, according to Justice Brandeis, in his famous dissenting opinion from 1927 on the First Amendment in Whitney v. California, is not censorship, but more speech.
Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”
The effectiveness of Justice Brandeis’ remedy of counteracting “evil” speech with more speech can be seen as Ms. Palin is bombarded with both ridicule and substantive criticism, not only for her initial callousness and unwillingness to acknowledge the insensitivity of her cross-haired map, but also for her defiance after the attacks. Many have pointed out that her strident speech accusing the media of “blood libel” suffered in comparison to President Obama’s graceful call for unity and civility. Conservative Ross Douthat is begging the media to stop considering Sarah Palin a contender for the 2012 Republican nomination. The Washington Post’s Dana Milbank, who has made a career on writing about Ms. Palin, is now asking other writers to join him in not mentioning her name for the month of February. Both the Daily Show and the Colbert Report harshly mocked her for hypocrisy and double standards. And as Joe Scarborough noted, the blood libel speech may have signaled the end of her political career.
It’s clear Ms. Palin’s ignorant comments have led to an all-time low in her already dismal favorability ratings and may have permanently damaged any chance she has at winning higher office. Let’s just not make it a crime for her to shoot herself in the foot.
Trevor Timm is the curator of the @WLLegal Twitter account, which aggregates and analyzes news on WikiLeaks and US law.