Of Free Speech, Bullseyes, Gabrielle Giffords, and Sarah Palin
After Jared Loughner’s attempted assassination of Arizona Rep. Gabrielle Giffords and massacre of six other people, including a nine-year-old girl, everyone is talking about the disgustingly violent rhetoric of the Tea Party (and the majority of Republicans), in particular the fact that Sarahpac’s website “Take Back the 20″ showed 20 Democrats who were elected in Republican-leaning districts who voted in favor of the health-care bill with cross-hairs aligned on them (like everything remotely associated with Sarah Palin, anything that could be unpleasant for them is constantly scrubbed, so you will see if you click on the link only a broken image).
The question is whether this is speech protected by the First Amendment or incitement to commit violence, which in certain rather specific circumstances is not protected. Liberal activists have been proclaiming that it is the latter, as well as constantly going to Palin’s Facebook page to blame her for the attack (all such comments are being scrubbed, of course). Jack Shafer, Slate’s contrarian-in-chief (or is it a three-way tie with William Saletan and Jacob Weisberg?) just posted a column saying that all such claims are “awesomely stupid,” pointing out, on the one hand, that violent rhetoric is an everyday part of everybody’s political speech (we “attack” people, we “target” them, Jon Stewart “annihilated” Jim Cramer, etc.) and, on the other, that there is no possible entity that could be trusted to regulate such speech and to judge the difference between vivid imagery and incitement.
Now, I think Shafer’s article is asinine, but first a few disclaimers.
Loughner is probably a paranoid schizophrenic, and his politics is hard to classify–his favorite books run the gamut from the Communist Manifesto to Ayn Rand’s We the Living, and from Mein Kampf to To Kill a Mockingbird. His beliefs are even crazier than those of the average Tea Partier, including the idea that “The government is implying mind control and brainwash on the people by controlling grammar.” Although reading that sentence almost makes me believe he’s right. Overall, I guess he fits comfortably in the Randist/Paulist right, although it’s impossible to be certain. He says, in one of his videos, “No! I won’t pay debt with a currency that’s not backed by gold and silver! No! I won’t trust in God!” Mark Potok of the Southern Poverty Law Center connects his ideas to those of a far-right nutcase named David Wynn Miller (or, in his own rendering, David hyphen Winn full colon Miller). The point, anyway, is that he’s not part of the normal constituency of the Tea Party or Sarah Palin.
Next, my position on free speech. When the Danish cartoon issue came up almost five years ago, I wrote quite a bit on it, despite the fact that the whole thing was so stupid. If I may quote myself,
Anyway, here it is. I’m not a free speech absolutist, in part because frankly any absolutism is rationally suspect. In particular, free speech absolutism would have to argue that freedom of speech always and inevitably must trump every other concern, rights-based or not, and I don’t see how one could argue this. It’s worth noting that, for example, Milton’s celebrated defense of freedom of speech and the press in Areopagitica is not an absolute one. It accepts that public welfare is the ultimate criterion and, in particular, argues that it’s ok to censor certain publications — what is argues against is prior restraint.
Personally, I think his view is still too tolerant toward censorship, but his basic framework is correct.In practice, however, I come down pretty close to free speech absolutism. Aside from deliberate and specific libel, you should be able to publish anything in a book. Newspapers should have the right to publish racist cartoons or, like the LA Times did a while back, a racist op-ed proclaiming that Jews are really God’s chosen people. And they shouldn’t be subject to government sanction when they do, although organized (nonviolent) campaigns by readers are perfectly legitimate as a response.
I pretty much hold to that now (when I said Milton had the right framework in Areopagitica, I meant only that it was right to evaluate free speech as one of a number of competing goods and as at least in principle subject to some limitation).
An absolutist position on freedom of speech is fundamentally incoherent because speech is a kind of action. It is a very specific kind, and one can draw boundaries around it, but the boundaries are necessarily fuzzy. It’s not hard to come up with examples of speech which should not be protected. Say you know a gun-owning paranoid schizophrenic very well and you repeatedly tell him his mother is an agent of Satan that replaced his real mother. Say someone you really dislike suddenly walks into a Tea Party meeting where half the members are packing heat, and you (deliberately, knowing it’s not true) scream, “Oh my God! He’s got a gun!” These are both roughly equivalent to Holmes’ famous example of shouting fire in a crowded theater, but they also make it clear that incitement does not require explicit advocacy. You’re not telling the schizophrenic to shoot his mother and you’re not telling the Tea Partiers to open fire either. You’re just saying things to create in them a state of mind that any reasonable person could predict is likely to lead to violence.
Now, what if you constantly say that Obama is a Manchurian candidate Muslim who has been inserted into office by a global cabal of financiers (and we all know what that means) in order to destroy America? And, instead of targeting a schizophrenic you know, you send those words out on the airwaves to millions of people, at least several of whom are surely schizophrenics? Or you talk about how George Soros is an anti-Semitic Nazi Jew whose business is toppling governments and who is now working on toppling the U.S. government? Or if, like Palin, you merely talk about how Obama has engineered the health bill to create “death panels” that are going to kill your grandparents once their use to society is gone, and if you constantly cradle your gun, say things like “Don’t retreat. Reload” and have people associated with you put bullseyes on Democratic congresspeople? (Palin’s aide Rebeccca Mansour said on TV that they weren’t cross-hairs but rather “surveyors’ symbols,” but I don’t know if there’s anyone dumb enough to believe that).
I agree that this set of examples is a little more difficult than the previous ones. Similar arguments were used, for example, to make being a communist illegal because they talked about violent overthrow of the government, until the Supreme Court definitively ruled in 1957 in Yates v. United States that this is protected speech. Their main consideration was the difference between advocacy of an abstract doctrine and advocacy of immediate actions that are likely to occur because of your advocacy.
And then there are Shafer’s examples of the kind of violent language we use every day, which, he points out, he uses too. There is a big difference to be considered, however. Shafer is relentlessly rational, never suggests that people should be ready to commit violence, and never tries to foster paranoia in other people. Compare this to the sickening vomitous mass of radical right rhetoric in this country. If Shafer regularly told a bunch of people on the border of paranoia that everything is out to get them, if he exhorted them to carry guns to political rallies, if he told them to be ready for “Second Amendment solutions” to their problems, if he was leading a growing number of people to reclaim the idea of the right of revolution (armed), then his use of violent language would look different. Especially if there had been a growing number of violent incidents–an attack on guards in the Holocaust Museum (killing one), the killing of three Pittsburgh police officers, an attempted attack on the Tides Foundation, and innumerable others–directly linked to the atmosphere of hysteria being created by the right wing since a black president came into office.
I am not suggesting that the government go after Sarahpac or Glenn Beck (who definitely inspired the Tides Foundation attack). I agree with Shafer that there is no authority one can trust with deciding such things, unless the cases are absolutely clear-cut. But the claims that this speech is incitement and not protected are not equivalent to saying that it should actually be prosecuted. The point is to make it clear that these apostles of hate are being criminally irresponsible and no decent person should support them or even give them any legitimacy. If they continue with their unshakable base of support, and continue to be enabled by the “centrist” media, things will get worse before they get better. There is nothing wrong with taking the occasion of this horrific attack to start fighting back.
Christina Taylor Green was born on 9/11. She was in the student council. She went to Giffords’ “Congress on Your Corner” event to learn more about how the political process works. She deserved a better political process than the cesspool we have now.