BU ACLU: ‘When Criticizing Rhetoric, Remember Freedom of Speech’

SarahPACToday I received an interesting email from the Boston University ACLU (text below). It’s also on their Facebook Page:

Jared Lee Loughner, charged with Saturday’s shootings, has invoked his right to silence, leaving us ignorant of his motives. Sources disagree on his politics — an acquaintance calls him an “extreme” liberal; a government memo links him to a “racial-realist” journal (one that denies any ties to him). His online writings point to an unhinged mind. But though much remains unclear, people are withdrawing some of their first theories, which rashly labeled the shootings a Tea Party / Republican plot.

Replacing those accusations is a broader look at how the shooter may have responded to intense political rhetoric. Critics again blame the right-wing, mainly Sarah Palin, whose PAC last year produced an image with crosshairs on congressional seats such as Giffords’. It was only a slight escalation from the usual manner of treating politics as war (Targeted districts, swiftboating, battleground states, political campaigns). But it was an escalation, and people called Palin out on it. Giffords herself spoke against it, stating her fears of a possible response.

Some critics now ask Palin to apologize for the graphic , which her site has now removed. The petition reads: “Violent threats have consequences.” Fine. We must all consider our words’ consequences. And reducing vitriol would improve politics.

But other people want to go further. Thousands across the web now call for victims’ families to sue Sarah Palin, or for us to charge her criminally for inciting violence. Some, without a trace of irony, post these suggestions to ACLU message boards. Pennsylvania’s Rep. Bob Brady has proposed a bill banning imagery that uses gun-sights or cross-hairs. Like those from elsewhere on the political spectrum, these critics, after a tragedy, are forgetting Americans’ rights under the law. The First Amendment allows figurative calls to arms — and much, much more.

In this particular case, nothing proves that the image influenced the shooter. And if it did influence him, Palin need not have foreseen that it would have. The image was a political rallying cry to fellow party members. We might avoid similar calls from now on, but we don’t criminalize all that may motivate deranged assassins. If we did, we would have to ban Catcher in the Rye and permanently incapacitate Jodie Foster.

Even if the image’s designers could have foreseen its consequences, they did not intend them, which should remove criminal liability. Yet even if they did intend them — and this is what people so easily forget — the law would still protect that speech. Sarah Palin could have, for the sake of argument, declared: “Citizens! You should shoot all the Democrats in Congress.” The law would have protected her.

We punish dangerous speech only when it incites imminent lawless action. So if you were present on Saturday in Tuscon and urged the shooter to act, you would have broken the law. If you instructed him beforehand to act on that day and in that place, you would have broken the law. But advocating lawbreaking in general, despite the consequences that may follow, merely expresses an opinion. The Constitution protects that, even if the opinion is objectionable or dangerous.

This standard exists, in part, because of the ACLU. In 1964, Klan leader Clarence Bradenburg called for “re-vengeance” against blacks and Jews at a televised rally. This invitation for violence earned him a fine and a sentence of up to ten years. But the ACLU defended Brandenburg all the way to the Supreme Court, which then revised the legal standard for criminal speech.

Bradenburg v Ohio legalized racist speech and other violent calls to action. It also allowed legitimate political advocacy that had for the previous 50 years been illegal. According to the First Amendment, you may advocate anything, even positions the majority abhors, and argue for it however you want — so long as you don’t infringe on someone else’s rights. Others’ interpretation of your message does not undermine your right to express it. Not do the criminal actions others may later take.

People must choose their words carefully. But encourage self-restraint — don’t ask the government for censorship.

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  • Liam_McGonagle

    Right On!*

    I’m pretty sure this Loughner boy was critically inspired by all the hyper-aggressive, gun-themed rhetoric of Tea Bag douches like Glenn and Palin. They need to make a for-real public act of contrition for ratcheting up the hate–not some Boehner-like crockodile tears and phony statements regretting that they were “misunderstood”.

    But even more than that, I’m sure that Loughner was confused. God, all the stuff of his that’ I’ve seen are just huge washes of stillborn, incoherent, half-baked thoughts. That’s probably why there’s so much disagreement about his political views. And that’s DEFINITELY why we need to protect free speech.

    The more and more I think about this, the more and more convinced I am that Loghner’s a canary in the coal mine, a symptom of a wider problem: Nobody says anything in the mainstream media that’s worth listening to. There’s this immense unspoke protocol of issues you’re not supposed to touch, and hierarchies of “credibility” based on socio-economic status rather than intellectual rigor that render our public discourse basically worthless.

    5by5 and others helped me a while back compile a list of issues you can’t touch in public, and I’m sure everyone here has his/her faves. I’m working (slowly) in the background on a piece exploring them and the dynamic that makes these taboos effective. But we’re in real danger here of assholes on BOTH sides of the political spectrum caving in to a cowardly center, and giving up on productive talk altogether in the vain hope to expiate the sins that lead to this tragedy.

    Loghner is a sad, confused clown–and asshole. Beck and Palin are assholes, too. Make no doubt about it. But if we stop talking about issues, REALLY talking about issues, this type of shit seems likely to become more the rule than the exception in the future.

    *Quaint 1970′s interjection signalling approval

    • Hadrian999

      there is a huge difference between really discussing issues and the over the top hyperbole that is the meat and potatoes of talk radio and really most political discourse in America today, when you say democrats are all socialists that want to kill your grandma with obamacare you really do have blood on your hands, both parties use these cheap scare tactics and it’s the reason we are becoming a more violent less tolerant society. people are being driven to see anyone that isn’t exactly like themselves as some kind of evil invader.

      • Liam_McGonagle

        I hear you, but I don’t think that we can legislate “class”. Any law that can be used can be abused, and no law more so than one attempting to legislate social “standards”. Palin and Beck are disgusting boors and hatemongers–don’t think I was ever ambiguous on that point.

        At some point mere laws aren’t enough. Actual social mores have to catch up and recognize people like them as the worthless cretins they are.

    • 5by5

      Liam_McGonagle: “But if we stop talking about issues, REALLY talking about issues, this type of shit seems likely to become more the rule than the exception in the future.”

      I would only add that the type of speech that Sarah “Target/Reload” Palin, Sharon “Second Amendment remedies” Angle, Alex “They’re coming to take your guns” Jones, Rush “47 Oxycontin a day” Limbaugh, and Glenn “I pretend to know the Constitution while warping it and crying a lot” Beck are using — has exactly NOTHING to do with “the issues”.

      Those people are intentionally AVOIDING a discussion of the issues and how to actually solve our most intractable problems precisely because they have no answers, or even IDEAS how to solve them. Indeed, many of them don’t even understand the QUESTIONS, much less have the answers, or any idea how to actually govern a country.

      So instead, they try to engage people’s lizard brain. Prodding the fear center of the amygdala, blithering sentimental emotion with talk of hearth, and family, and the wistful days of yore that never fricking existed except in their foggy craniums, and of course, ratcheting up the hate to the point where people cease to think logically, and just go into “react” mode.

      I hate to bring up the oft quote “yelling fire in a crowded theater” thing, because it’s an insufficient metaphor, but it does speak to “some” of the fact that incitement to violence is NOT protected speech. We have free speech (and political speech is the most protected), but it does have certain RATIONAL caveats/restrictions — one of which is you can’t run around advocating for violence without consequences.

      When Rush Limbaugh was encouraging people to riot in Denver at the Democratic Convention with his “Operation Chaos” and then a group of white supremacist assassins hopped on meth jump into a car to go to the Convention to kill Obama — a ride in which they no doubt listened to Rush’s rantings all across the country as they drove in places where Rush is literally the only political voice on the air, due to rightwing media consolidation — he bears responsibility for egging them on.

      I don’t call and whine to the FCC over Janet Jackson’s 1/10th of a second nipple reveal, but I sure as hell will call the FCC over THAT. Especially when the broadcaster in question is calling for riots in a place where some of my family still lives.

      When Bill O’Reilly calls Dr Tiller, “Tiller the Killer” in like 87 broadcasts night after night, and then some religious nutbag goes off and actually kills him, he bears responsibility for egging him on.

      In societies that have seen the furthest extremes of these examples, there are greater restrictions on speech. There is a real reason (even if you disagree with it, you have to admit it’s understandable considering the historical context) why Leni Riefenstahl’s “Triumph Des Willens” (Triumph of the Will) is banned in Germany. It makes Nazis LOOK GOOD, and the Germans don’t want to touch that with a ten-foot pole.

      Now we don’t go that far here. We give more leeway and there are consequences for that choice, and broadcasters THEMSELVES were cognizant that they had a sense of duty, and personal responsibility (that thing Cons constantly CLAIM they believe in but never actually engage in) to be conscientious of.

      And it used to be that we had SOME broadcast standards. In fact, if you were to be on the air, you had to reapply for your broadcast license every year, and part of that was logging how many hours in the previous year you gave to “community service” broadcasting. There was an understanding that you had been given a privilege to use the airwaves that the PUBLIC owns, and therefore it came with public service duties. That is no longer the case, but I think we should bring it back, because even if you took just those two last American examples, those two goobers should have lost their broadcast licenses for their DIRECT role in inciting violence.

      Keith Olbermensch uses harsh rhetoric, but you’ve NEVER heard him call for violence, even in jest. The most insistent he ever gets, is to demand someone be arrested and put on TRIAL. You know, like under the LAW.

      Still, there he was the other night, taking personal responsibility for HIMSELF and his own code, vowing to try to calm the dialog as much as he could, out of simple RESPECT, even though he himself never encouraged any of this type of behavior.

      But do you see ANYONE on the rightwing apologizing, or even self-REFLECTING on their role in all of this, even though they ramped up the rhetoric in the “Summer of Hate-a-thon” last year? No.

      In fact, one Congressman who dared to comment on it from the right, did so “anonymously” to the press. That’s how insane the Cons have gotten. This guy couldn’t even openly state, “Hey guys, maybe we ought to dial it down a bit,” to his own side of the aisle, after a 9 year-old little girl was KILLED, for fear of getting death threats HIMSELF from the rightwing echo chamber. Talk about Fascistic.

      The rest of them are just spewing damage-control talking points, saying “don’t politicize this”, after they’ve politicized everything from health care, to nuclear disarmament, to Michelle Obama’s gardening choices, or the President’s completely non-controversial “stay in school” speech to kids. Things which previously were commonly agreed upon are now REGULARLY “politicized” for electoral gain, and NOW they want people to stop mentioning how their mouths played a role in this???

      Gimme a serious break.

      They’ve gone completely off the rails, and if they don’t return to polite society and simple standards of courtesy and human compassion, they should be shunned old-fashioned style and never win an election again until they get their shit together.

      • Liam_McGonagle

        I hear you, but I don’t think that we can legislate “class”. Any law that can be used can be abused, and no law more so than one attempting to legislate social “standards”. Palin and Beck are disgusting boors and hatemongers–don’t think I was ever ambiguous on that point.

        Remember: them good ol’ days of officially proscribed media standards weren’t so uniformly good as we sometimes (mis)remember them. Hays code, etc., etc., etc.

        At some point mere laws aren’t enough. Actual social mores have to catch up and recognize people like them as the worthless cretins they are.

  • Liam_McGonagle

    Right On!*

    I’m pretty sure this Loughner boy was critically inspired by all the hyper-aggressive, gun-themed rhetoric of Tea Bag douches like Glenn and Palin. They need to make a for-real public act of contrition for ratcheting up the hate–not some Boehner-like crockodile tears and phony statements regretting that they were “misunderstood”.

    But even more than that, I’m sure that Loughner was confused. God, all the stuff of his that’ I’ve seen are just huge washes of stillborn, incoherent, half-baked thoughts. That’s probably why there’s so much disagreement about his political views. And that’s DEFINITELY why we need to protect free speech.

    The more and more I think about this, the more and more convinced I am that Loghner’s a canary in the coal mine, a symptom of a wider problem: Nobody says anything in the mainstream media that’s worth listening to. There’s this immense unspoke protocol of issues you’re not supposed to touch, and hierarchies of “credibility” based on socio-economic status rather than intellectual rigor that render our public discourse basically worthless.

    5by5 and others helped me a while back compile a list of issues you can’t touch in public, and I’m sure everyone here has his/her faves. I’m working (slowly) in the background on a piece exploring them and the dynamic that makes these taboos effective. But we’re in real danger here of assholes on BOTH sides of the political spectrum caving in to a cowardly center, and giving up on productive talk altogether in the vain hope to expiate the sins that lead to this tragedy.

    Loghner is a sad, confused clown–and asshole. Beck and Palin are assholes, too. Make no doubt about it. But if we stop talking about issues, REALLY talking about issues, this type of shit seems likely to become more the rule than the exception in the future.

    *Quaint 1970′s interjection signalling approval

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  • http://twitter.com/irisphant iris

    ” – a canary in the coal mine” I couldn’t have said it better.

  • http://twitter.com/irisphant iris

    ” – a canary in the coal mine” I couldn’t have said it better.

  • Hadrian999

    there is a huge difference between really discussing issues and the over the top hyperbole that is the meat and potatoes of talk radio and really most political discourse in America today, when you say democrats are all socialists that want to kill your grandma with obamacare you really do have blood on your hands, both parties use these cheap scare tactics and it’s the reason we are becoming a more violent less tolerant society. people are being driven to see anyone that isn’t exactly like themselves as some kind of evil invader.

  • dumbsaint

    It seems to me the issue with the crosshair stunts is less about a psychopath killer’s motive and more about Palin’s irresponsibility. Palin painted a target, illustrated by the crosshairs of a gun, and called for people to “reload”. Gifford subsequently voices her concerns over the image, worried that it’s gone too far. Later on down the track she is gunned down.

    I agree that free speech should be upheld however as we teach children: ‘just because you can say something, doesn’t mean you should’. Public figures should be held to a higher standard. Agencies in the media and elsewhere shouldn’t reward vitriolic nonsense.

  • Anonymous

    It seems to me the issue with the crosshair stunts is less about a psychopath killer’s motive and more about Palin’s irresponsibility. Palin painted a target, illustrated by the crosshairs of a gun, and called from people to “reload”. Gifford subsequently voices her concerns over the image, worried that it’s gone too far. Later on down the track she is gunned down.

    I agree that free speech should be upheld however as we teach children: ‘just because you can say something, doesn’t mean you should’. Public figures should be held to a higher standard. Agencies in the media and elsewhere shouldn’t reward vitriolic nonsense.

  • http://voxmagi-necessarywords.blogspot.com/ VoxMagi

    I’d like to propose a harmless experiment. Suppose we all call for someone to throw poop at Sarah Palin. We use veiled language, carefully implying and constantly alluding to throwing poop, but never quite say “Someone should go to her house and hit her with a piece of poop immediately.” Say we broadcast this as often as possible in as many ways as possible for a couple of years.

    Then lets say someone, some poor unhinged person who is unconnected to us personally, but who may well have been exposed to our speeches and their references to poop flinging, suddenly goes out and flings poop and hits Sarah right in the face.

    So the question of the hour is, are we in any way responsible? Would Sarah find fault only with the actual flinger, or would she cite the climate of hatred and violence that inspired the flinger, and demand the accountability of the persons who encouraged and even cheered for the poop-flinging concept?

    Either way…if poop hits Sarah…on camera…we all kind of win.

  • http://voxmagi-necessarywords.blogspot.com/ VoxMagi

    I’d like to propose a harmless experiment. Suppose we all call for someone to throw poop at Sarah Palin. We use veiled language, carefully implying and constantly alluding to throwing poop, but never quite say “Someone should go to her house and hit her with a piece of poop immediately.” Say we broadcast this as often as possible in as many ways as possible for a couple of years.

    Then lets say someone, some poor unhinged person who is unconnected to us personally, but who may well have been exposed to our speeches and their references to poop flinging, suddenly goes out and flings poop and hits Sarah right in the face.

    So the question of the hour is, are we in any way responsible? Would Sarah find fault only with the actual flinger, or would she cite the climate of hatred and violence that inspired the flinger, and demand the accountability of the persons who encouraged and even cheered for the poop-flinging concept?

    Either way…if poop hits Sarah…on camera…we all kind of win.

  • 5by5

    I would only add that the type of speech that Sarah “Target/Reload” Palin, Sharon “Second Amendment remedies” Angle, Alex “They’re coming to take your guns” Jones, Rush “47 Oxycontin a day” Limbaugh, and Glenn “I pretend to know the Constitution while warping it and crying a lot” Beck are using has exactly NOTHING to do with “the issues”.

    Those people are intentionally AVOIDING a discussion of the issues and how to actually solve our most intractable problems precisely because they have no answers, or even IDEAS how to solve them.

    So instead, they try to engage people’s lizard brain. Prodding the fear center of the amygdala, blithering sentimental emotion with talk of hearth, and family, and the wistful days of yore that never fricking existed except in their foggy craniums, and of course, ratcheting up the hate to the point where people cease to think logically, and just go into “react” mode.

    I hate to bring up the oft quote “yelling fire in a crowded theater” thing, because it’s a insufficient metaphor, but it does speak to “some” of the fact that incitement to violence is NOT protected speech. We can have free speech, but it does have certain RATIONAL caveat/restriction, and one of which is you can’t run around advocating for violence without consequences.

    When Rush Limbaugh was encouraging people to riot in Denver at the Democratic Convention with his “Operation Chaos” and then a group of white supremacist assassins hopped on meth jump into a car where they no doubt listen to his rantings all across the country as they drive in places where Rush is literally the only political voice on the air due to rightwing media consolidation, he bears responsibility for egging them on.

    When Bill O’Reilly calls Dr Tiller, “Tiller the Killer” in like 87 broadcasts night after night, and then some religious nutbag goes off and actually kills him, he bears responsibility for egging him on.

    In societies that have seen the furthest extremes of these examples, there are greater restrictions on speech. There is a real reason (even if you disagree with it, you have to admit it’s understandable considering the historical context) why Leni Riefenstahl’s “Triumph Des Willens” (Triumph of the Will) is banned in Germany. It makes Nazis LOOK GOOD, and the Germans don’t want to touch that with a ten-foot pole.

    Now we don’t go that far here. We give more leeway and there are consequences for that choice, and broadcasters THEMSELVES were cognizant that they had a sense of duty, and personal responsibility (that thing Cons constantly CLAIM they believe in but never actually engage in) to be conscientious of.

    And it used to be that we had SOME broadcast standards. In fact, if you were to be on the air, you had to reapply for your broadcast license every year. That is no longer the case, but I think we should bring it back, because even if you took just those two last American examples, those two goobers should have lost their broadcast licenses for their DIRECT role in inciting violence.

    Keith Olbermensch uses harsh rhetoric, but you’ve NEVER heard him call for violence, even in jest. The most insistent he ever gets, is to demand someone be arrested and put on TRIAL. You know, like under the LAW.

    But there he was the other night, taking personal responsibility for HIMSELF and his own code, vowing to try to calm the dialog as much as he could, out of simple RESPECT, even though he himself never encouraged any of this type of behavior.

    But do you see ANYONE on the rightwing apologizing, or even self-REFLECTING on their role in all of this, even though they ramped up the rhetoric in the “Summer of Hate-a-thon” last year? No.

    In fact, one Congressman who dared to comment on it from the right, did so “anonymously” to the press. That’s how insane the Cons have gotten. This guy couldn’t even openly state, “Hey guys, maybe we ought to dial it down a bit,” to his own side of the aisle, after a 9 year-old little girl was KILLED, for fear of getting death threats HIMSELF from the rightwing echo chamber. Talk about Fascistic.

    They’ve gone completely off the rails, and if they don’t return to polite society and simple standards of courtesy and human compassion, they should be shunned old-fashioned style and never win an election again until they get their shit together.

  • warbear

    actually….this really isnt that serious. its one guy, one guy who might have been influenced by palin’s rhetoric, but who cares? its not like her first ammendment rights have caused mass panic or mass hysteria and made people go out and kill everyone who was on the stupid list. crazy people are like drug addicts-if they are going to do it, they will doit, and you cant stop them. not by making another oppressive law or taking any kind of preventive measures. they will find a way.

  • warbear

    actually….this really isnt that serious. its one guy, one guy who might have been influenced by palin’s rhetoric, but who cares? its not like her first ammendment rights have caused mass panic or mass hysteria and made people go out and kill everyone who was on the stupid list. crazy people are like drug addicts-if they are going to do it, they will doit, and you cant stop them. not by making another oppressive law or taking any kind of preventive measures. they will find a way.

  • Liam_McGonagle

    Trying to police speech is an exercise in futility. The only way you can definitively preclude gross misinterpretation is by not saying anything–which the centrists would absolutely love, because it makes their job of preventing change so much easier.

    I’m not disputing that Palin et alia are (w)horrible shitbags with who have been asking for something this stupid to happen. Indeed they have, and they will pay the consequences. They will become pariahs. In the months and days that follow, I expect (or at least hope) that the metaphorical stench of blood and horseflies that have been following their slimetrails will become tangible. Tangible to the point of intolerability, and sponsors and supporters recoil from the sound of their very names.

    Want to know what it’s like to be truly lonely? Wait six months and then ask Sarah Palin. That is if you can keep the gag reflex down long enough to get within 10 yards of her.

  • Liam_McGonagle

    Trying to police speech is an exercise in futility. The only way you can definitively preclude gross misinterpretation is by not saying anything–which the centrists would absolutely love, because it makes their job of preventing change so much easier.

    I’m not disputing that Palin et alia are (w)horrible shitbags with who have been asking for something this stupid to happen. Indeed they have, and they will pay the consequences. They will become pariahs. In the months and days that follow, I expect (or at least hope) that the metaphorical stench of blood and horseflies that have been following their slimetrails will become tangible. Tangible to the point of intolerability, and sponsors and supporters recoil from the sound of their very names.

    Want to know what it’s like to be truly lonely? Wait six months and then ask Sarah Palin. That is if you can keep the gag reflex down long enough to get within 10 yards of her.

  • Anonymous

    I hear you, but I don’t think that we can legislate “class”. Any law that can be used can be abused, and no law more so than one attempting to legislate social “standards”. Palin and Beck are disgusting boors and hatemongers–don’t think I was ever ambiguous on that point.

    At some point mere laws aren’t enough. Actual social mores have to catch up and recognize people like them as the worthless cretins they are.

  • Anonymous

    I hear you, but I don’t think that we can legislate “class”. Any law that can be used can be abused, and no law more so than one attempting to legislate social “standards”. Palin and Beck are disgusting boors and hatemongers–don’t think I was ever ambiguous on that point.

    At some point mere laws aren’t enough. Actual social mores have to catch up and recognize people like them as the worthless cretins they are.

  • Brentskinner5
  • Brentskinner5