In the wake of numerous death threats and vandalism plaguing House Democrats who voted for health insurance reform, many have been asking if the actions of Sarah Palin and other right-wing pundits cross the line from free speech into criminal speech.
Sarah Palin published on her Facebook page a list of twenty Democrats who voted for health insurance reform and who are elected in districts that used to be Republican. Their locations on a map of the United States are marked by crosshairs - a symbol that clearly refers to target practice and violence.
These targeted politicians have received death threats. Their offices and homes and the homes of their family members have been vandalized. They are beefing up security measures for themselves and those who are close to them. Sarah Palin might be to blame.
But she is not a criminal.
The Supreme Court has a high standard for criminalizing speech. Free speech, while not an absolute right, is a highly protected privilege in the United States.
Under certain narrow circumstances, the government can punish or prevent speech when "the words are used in such circumstances and are of such a nature to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." (Schenck v. United States, 1919). This was translated in 1970 into a legal test that demands criminal speech 1) be directed to inciting or producing imminent lawless action" and 2) be "likely to produce such action." (Brandenburg v. Ohio, 1970). As Justice Brandeis pointed out in his concurring opinion on the subject of incitement to violence, "If there is time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence." (Whitney v. California, 1927).
In Brandenburg, this legal test was applied and the Supreme Court found that a call for revenge if "our President, our Congress, our Supreme Court continues to suppress the white, Caucasian race" was not criminal speech.
The saving grace for the crazy revenge talk and gun imagery used in Palin's ad is that it does not create the expectation of imminent harm. Sure, harm has occurred. There have been incidents. But the speech itself does not go so far as to encourage immediate and concrete action. There is time, as Brandeis pointed out, for reasoned discussion and debate.
It is a good thing that we don't criminalize the kind of ads Palin is producing.
First, they are expressly political. Political speech is the highest form of protected speech under the First Amendment and that is necessary to preserve democratic function. We simply have to tolerate extreme points of view in order to prevent a tyranny of the majority and repression of the minority.
Second, expressions of frustration, anger and wishes for revenge are very different from actions that violate criminal law. We punish actions because the create harm. The speech does not. The only time that we criminalize speech is when the very act of speaking so clearly and immediately leads to harm that there is really no way to separate out the act of speaking and the violence that ensues (according to a seminal essay by Zechariah Chafee Jr., Free Speech in the United States, 1948).
That doesn't mean Palin's use of violent imagery isn't offensive. She is a public figure, a former candidate for the second highest office in the country. Her words have a great effect on the public and should be chosen carefully.
On the other hand, if we really wanted to hold politicians to a higher standard of speech, we'd have more than just one member of the Republican party to worry about.
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Not one.
Admittedly, heated language - and even the occasional well-aimed brick - have been a part of our adversarial political landscape since it began. That doesn't make it right, but it should caution those of us on the Left against blowing this latest round of political thuggery too far out of proportion.
Nevertheless, my brethren on the Right, we should at LEAST be able to unite in condemnation of...oh...let's say, intentionally cutting the gas line to someone's home (http://www.politico.com/news/stories/0310/35040.html), for example. This is an act which can't be excused or explained or condoned under any circumstances - and especially not by reminding me that the SDS did desperate, terrible things 40 years ago.
Those weren't cool either.
But therein lies the difference I'm seeing between Left and Right. Confronted with evidence of similar excesses against Mr. Bush, for example, most Liberals will at least begin by admitting that those incidents were inexcusable as well. But when confronted with clear evidence of today's incidents by fringe elements of the Right, I find NO Conservative response other than "Well, you Libs did it too."
C'mon, Republicans - some issues plainly go beyond just Ds and Rs.
The more Americans learn about the astroturf origins and wingnut implications of your hate monger mob the more they disavow them.
Republicans are a shrinking small tent controlled by an extremist fringe with delusions of grandeur blown way out of proportion by Faux, their Insurance industry funders and hate radio.
Rave on, keep painting your twaddle spewing rabble into a farther than right corner.
You will go the way of the John Birch Society which you are now way to right of in your program.
These confederate republicans are going to self destruct and hopefully before Nov 2. There is no civility with these confederate repubs. It got to be their way or the highway and they are still fighting the 'war betw the states'. They will lose again, and this time on national tv.
We have now, in America, a situation never before experienced to my knowledge. A television network totally dedicated to one particular Party of government, And that network is the second most popular on TV according to HP.
In view of that fact and of the nature of debate over the health care proposals during the past year, packing guns at rallies, calling the President a Fascist, a Communist, a Racist, and politicians and supposedly fair and balanced new anchors prediciting doom, armagedon, the end of America as we know it, and the undisguised hatred for Liberals, Sarah Palin's metaphors are a diabolicle green light for some of the unhinged members of the Conservative point of view. She should be held accountable. It just shows her lack of sensitivity and depth.
Precisely. Exquisitely stated - your accurate list of unmistakably unnerving events clearly demonstrates why THIS climate demands restraint.
A true leader would automatically recognize the unique aspects of this moment in time, and take steps to keep vigorous public debate (which we should have) from degenerating into some potentially tragic incident, carried out by a fanatic. A true leader would automatically recognize the power of words to either calm or inflame. A true leader would automatically recognize that the REAL American ideal is about uniting rather than dividing.
Sadly, Ms. Palin's behavior, while not illegal, is irresponsible given the climate of these times - and adds yet one more example to the list of reasons she is not a true leader.
What she is doing is far worse. She holds sway over some of the k ookiest wing nuts out there. She is telling them where the targeted congressmen/senators live. If any member of the family of any of these people is injured or worse by her efforts, let's do hope she is charged with conspiracy and sued for every bit of her ill-gotten gain.
We do respect her right of free speech. We don't respect that she uses that right in a most heinous and irresponsible manner..
Bit of a stretch to say the least
If you didn't have double standards you would have none at all.
What you and liberals like you can't stand is that Palin didn't go quietly into the night after you and your shills in the Press went after her and her family. The hate, slander and misinformation campaing against Palin only made her stronger and it is just making you'all sick!!
Your article didn't bring anything new to the table.. its just that you love to talk about her... can't help it...
The problem in Palin's case is that she's always complaining about how she is treated and attacked, yet she's so vicious herself.