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.