01 August 2016

Lock Him Up!

There have been any number of criminal prosecutions for threats, especially those aimed at Presidents, judges, or personnel associated with providing reproductive health services. Whether speech constitutes a threat or is a protected expression of opinion is sometimes not so clear. Context frequently is an important factor. When lawful abortion providers were shot and killed after they were the subject of "Wanted" posters, a group in Oregon i) published tracts approving the morality and legality of killing the doctors, ii) praised the murderers of other docs who had been the subject of similar posters, iii) petitioned for release of the killers, and iv) then published more wanted posters of doctors who provided lawful abortions to their patients. A unanimous nine-person federal civil jury found that, given that particular context, the wanted posters were intended to and did intimidate the health workers, and were illegal threats.  A slim majority of appellate judges affirmed that verdict.

Some allegedly "learned" lawyers suggested the case was wrongly decided because the offending speech, they claimed, did not meet the Supreme Court's rigid requirements for illegal incitement.

But incitement is different from threats.  Incitement is speech that is not necessarily aimed at the victim's fear of violence, but is speech that is both i) directed to encouraging others to do "imminent" violence to the victim, and ii) is "likely to produce" the incited unlawful conduct.

When someone publicly expresses the view that "blue-shirted pigs should be killed", and Micah Johnson, a troubled admirer of that speaker, then shoots and kills five policemen, that sure sounds like incitement to me, even under the restrictive Supreme Court rules mentioned above.

And if Donald Trump makes statements to his supporters at a rally that protesters should be beaten up, and he further encourages such conduct by offering to pay any legal bills resulting from the assault, aren't those words "likely" to result in protesters being beaten up? Duh, does it surprise anyone that shortly thereafter a peaceful protester at a Trump rally was sucker punched by a Trump supporter?

To up the ante, in the added context of a Trump political convention where i) organizers distributed posters and led chants urging that Hillary Clinton be "locked up", and ii) a speaker at that convention accused Hillary Clinton of murdering her son, we now have the nominee's advisor declaring that Hillary Clinton should be "shot." Those comments were not narrowly distributed to a colloquium of college professors or ACLU lawyers, but were broadcast to the entire country, and that includes the angry, troubled ones, the Micah Johnsons of this world.

So, in a week when John Hinckley Jr. was released from the facility for the criminally insane because he is "all better now" after shooting and trying to kill President Reagan, my question directed to Attorney General Loretta Lynch and FBI Director James Comey is, do we really need to wait until Hillary Clinton is actually shot by some Micah-Johnson-like disaffected person before we lock up the bad guys or do our criminal incitement laws apply only to speakers who cultivate short brush mustaches and whose followers wear armbands on their brown shirts?

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