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Eye on the News

Walter Olson
Forced to Be Civil?
Some seem to think criminalizing negative campaigning is a good idea.
15 October 2008

Should politicians face criminal charges, or even prison time, if they criticize opponents in too reckless or inflammatory a fashion? The question came up last week as a chorus of critics assailed GOP candidates John McCain and Sarah Palin, whose criticisms of Barack Obama for his relationship with Bill Ayers were (it was claimed) stirring up crowd anger at campaign appearances and creating the risk of potential violence. “Borderline criminal incitement,” charged influential liberal blogger Joshua Micah Marshall.

Other bloggers took up the theme, referring to the McCain/Palin rhetoric as “acting criminally to incite murder”; as comparable with shouting fire in a crowded theater; and as behavior that “may be unlawful” or at least “edging on criminal.” Some called for the FBI and Secret Service to investigate or arrest people who had gone to the rallies—or even to investigate the Republican candidates themselves. “It is only a matter of time before McCain/Palin’s falsely linking Obama to terrorism and un-American sympathies will erupt in violence against Obama’s people, the media or anyone opposing the McCain/Palin ticket,” asserted blogger “Scarecrow” at Firedoglake. “Inciting others to violence is a crime, a dangerous felony, and it is time for our media to stop treating this incitement as just another gradation of ‘negative campaigning.’”

Not everyone was convinced that “the rising rage at McCain-Palin rallies” (as CNN described it) had been reliably documented. The week’s news cycle had begun with a puckishly worded, impressionistic campaign journal by the Washington Post’s Dana Milbank, in which he described how ugly the mood was at a Palin rally in Clearwater, Florida—but John Leo cited other reporters who had attended the same rally and not found the atmosphere threatening. Milbank quoted two disruptive attendees among a crowd of 4,500, one of whom reportedly had used a racial slur. This one bigot soon mysteriously mutated into multiple attendees in a New York Times editorial, and before long, others were attributing rabid language to the rally crowds generally, as if they were stadium fans chanting in unison. The Times’s Paul Krugman proceeded to describe GOP rally-goers as “gripped by insane rage”; his op-ed twin Frank Rich accused the Republicans of knowingly “inciting vigilantism,” the better to stoke “Weimar-like rage” (that’s right: as his own special contribution to reducing the rhetorical heat, Rich chose to compare Republican campaigning with the Nazis’ rise to power). Many others joined the chorus as well: John Sweeney of the AFL-CIO proclaimed his high-minded outrage, while congressman (and historic civil rights figure) John Lewis of Georgia invoked an “atmosphere of hate” similar to that created by segregationist Alabama governor George Wallace, which he said had led to the 1963 Birmingham church bombing.

By this point, commentators had managed to dig up a few more nasty utterances by rally attendees. According to David Bernstein’s calculation at Volokh Conspiracy, Rich’s support for his premise of a violent mob atmosphere rested on five incidents of catcalls or outbursts recorded from among hundreds of thousands of people in multiple cities.

By then, the issue had fanned out to other locations on the web, including Concurring Opinions, a leading law-professor blog. Professor Susan Kuo of the University of South Carolina School of Law began her post by aligning herself firmly with the Milbank-Krugman-Rich camp, charging the McCain campaign with “character assassination” and “peddling fear, hate, and outrage to an audience that appears highly susceptible to this message.” Her evidence? Well, among other things, “a couple of McCain’s surrogates have even invoked Obama’s middle name in what can only be an attempt to portray Obama as a terrorist himself.”

Then Kuo—who teaches criminal law and criminal procedure, among other courses—moved on to a legal analysis. She asked whether the GOP candidates might have a “legal duty” to tone down their attacks, lest their unhinged partisans be enflamed to commit (still-hypothetical) acts of impulsive rage. And she laid out a couple of possible theories for criminal responsibility:

Should the fear-mongering candidate (or a campaign strategist or surrogate) bear any responsibility for the bad acts of a fanatical groupie?
Under the Model Penal Code, one can be liable as an accomplice for another’s bad acts if the prohibited result was her conscious object. This standard might be hard to satisfy in my imagined scenario, but some criminal statutes are broader and could allow liability to attach based on one’s knowledge that, to a practical certainty, one’s conduct will assist in bringing about the prohibited result. Because knowledge is a less culpable mental state than purpose, however, courts might require something in addition to the knowledge—something like a stake in the venture. Would an election victory suffice as a stake? On the other hand, if the accused knows that, as a result of her conduct, the prohibited result is practically certain to occur, the serious nature of the intended crime should, arguably, be enough. No extra something should be required.

All of which, with its relatively clinical tone, might not quite amount to “Sure, prosecutors, let’s go for it”—but it’s even further from “This is a truly awful idea that would run smack into the First Amendment.” Indeed, Kuo bizarrely makes no mention of the First Amendment and its free-speech guarantee, with which our courts have—if not in the days of the Sedition Act of 1798, then at least more recently—protected speech arising from public controversy, even when it has arguably incited supporters to violence (unless the speaker has taken more tangible steps, such as handing the supporters weapons and lists of enemies’ addresses). Until recently, it was liberals in American politics—presumably among those supporting Obama this year—who proved keenest on defending even highly incendiary statements as protected speech.

UCLA law professor Stephen Bainbridge noted the irony that the AFL-CIO should express concern about controversial speech that may whip supporters into a violent frame of mind. Four years ago, union protesters stormed and ransacked Republican offices in Orlando, Florida. A protester broke a Republican campaign worker’s wrist, and other union activists intimidated Republican workers in Miami, Tampa, and elsewhere. When it comes to confrontations on the picket line, union officials enjoy both informal and formal legal immunities from liability for underlings’ violent or menacing acts. California law, for example, proclaims for all its citizenry a general “right to be free from any violence, or intimidation by threat of violence”—but then adds a further clause specifying that the right doesn’t apply in the context of “otherwise lawful labor picketing.”

Whether or not John Lewis wants to acknowledge it, American law’s broad protection for borderline (perhaps even over-the-borderline) incitement has also been of great practical benefit to the civil rights movement. Among the key cases on this subject is the Supreme Court’s NAACP v. Claiborne Hardware (1982), which reached the high court after civil rights leader Charles Evers organized a boycott of white-owned stores in a Mississippi town. Most black townspeople went along with the boycott, but some who didn’t were roughed up, and of course the local white merchants lost out, too. UCLA law professor and free-speech expert Eugene Volokh summarized the relevant evidence:

Evers said that boycott violators would be “disciplined,” that the Sheriff couldn’t sleep with boycott violators at night, and allegedly that “if we catch any of you going in any of them racist stores, we’re gonna break your damn neck.” But despite this, the Supreme Court unanimously held that Evers’ speech was constitutionally protected.

Reasonable minds may differ as to whether the Claiborne Hardware court drew the right boundary between First Amendment-protected speech and incitement. What should be clear, though, is that absent a virtual revolution to overthrow First Amendment principles generally shared by most liberals and conservatives, no judge would sustain criminal charges of the sort eagerly discussed by some observers regarding the McCain/Palin campaign rallies.

In the meantime, an attempt to deploy incitement theories to help squelch the stump speeches of the other side’s politicians could worsen the same poisonous atmosphere of partisanship and distrust that is supposed to be the problem. Over at Prawfsblawg, Florida International University law professor Howard Wasserman—while echoing the now-standard charge that the Republicans had “stoked and provoked” hatred—also made clear his dissent from the proposed remedy: “I cannot buy the notion being floated that anything unlawful is happening. ... ugliness is not unlawfulness. And whatever criticism the [Republican] campaign warrants for engaging in personal attacks and riling up the crowd, charges of engaging in ‘borderline incitement’ should not be among them.” Blogger Josh Marshall also backed off, denying that his talk of “borderline criminal” behavior had implied any thoughts of actual prosecution.

Barack Obama, having taught constitutional law, likely shares the Wasserman view. In the new spirit of reining in one’s most irresponsible supporters, it would be encouraging if he spoke up and said so.

Walter Olson is senior fellow at the Manhattan Institute and edits Point of Law and Overlawyered. He is at work on a book on the influence of the law schools.

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