The fine line between advocacy and incitement...
By Ernest A. Canning on 1/15/2011, 9:33am PT  

[Update 4:26pm PT: Related to the story below, one of the victims of the Tucson shooting has just been arrested for issuing a threat against Rightwingers at a taping for an ABC News special. It seems incitements by some are taken more seriously than incitements by others. Story here... -BF]

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Guest blogged by Ernest A. Canning

"I find it chilling to hear so many U.S. government officials calling for the leader of this organization, Julian Assange, to be labeled an 'enemy combatant' and jailed --- or worse."-Letter from Rep. Ron Paul (R-TX) to Tom Hayden

Recently, a number of prominent politicians and pundits have called for the violent targeting of other individuals who have been neither accused nor charged with any crimes whatsoever, calling into the question the legality of such incitements to violence.

This article will transcend the issue of "moral responsibility" on the part of those politicians and pundits for the horrific consequences that may, and often do, ensue as the result of their deliberate appeals to fear, prejudice and hate so as to examine when such rhetoric actually amounts to an actual crime under the laws of our land.

There can be little doubt that, as observed by Pima County Sheriff Clarence Dupnik, the combination of 24/7 "vitriolic rhetoric" on TV and radio (See video below for poignant examples of such rhetoric), the absence of gun control, with leading U.S. politicians calling for "Second Amendment remedies," and the placement of "crosshairs" over a political opponent's district while calling on citizens to "reload," can produce lethal consequences --- consequences that are not limited to the actions of the deranged.

Such rhetoric is both the product and cause of dehumanization --- a process defined by Professor Phillip Zimbardo in The Lucifer Effect as a means "by which certain other people or collectives of them are depicted as less than human..."

Zimbardo writes:

The process begins with stereotyped conceptions of the other,...conceptions of the other as worthless, the other as all-powerful,…the other as a fundamental threat to our cherished values and beliefs. With public fear notched up and enemy threat imminent, reasonable people act irrationally, independent people act in mindless conformity, and peaceful people act as warriors. Dramatic visual images of the enemy on posters, television, magazine covers, movies, and the internet imprint on the recesses of the limbic system, the primitive brain, with the powerful emotions of fear and hate.

Where we covered the scientific work of Zimbardo and others in "Hate Speech and the Process of Dehumanization," and in a follow-up, demonstrating how the process applies both when directed to foreign "threats" and domestic "foes," here the focus is the thin legal line, unique to the U.S. courtesy of the First Amendment, between advocacy and incitement, and whether some U.S. politicians and pundits may have, at least in the case of WikiLeaks and Julian Assange as they have now charged, crossed that line so as to possibly warrant criminal prosecutions...

The Brandenburg distinction between advocacy and incitement

During a December 8 appearance on Democracy Now, Jennifer Robinson, one of the attorneys who represents Assange in his U.K. extradition proceedings, observed that people who have publicly called for the assassination of her client "ought to be reported to the police for incitement to violence."

Robinson noted that a former adviser to Canadian Prime Minister Stephen Harper --- Thomas Flannagan, who said: "I think Assange should be assassinated...Obama should put out a contract or...use a drone..." --- was now "the subject of a police complaint, and the file has gone to the director of public prosecutions in Canada."

But words that may constitute a crime in either the U.K. or Canada are not necessarily a crime in the U.S.

In Brandenburg vs. Ohio the U.S. Supreme Court held that the First Amendment shields individuals who merely advocate the violent overthrow of the government. This does not mean that all forms of speech are protected.

Under Brandenburg, speech can be prohibited if it is "directed at inciting or producing imminent lawless action" that is "likely to incite or produce such action."

Shock jock convicted of inciting others to kill federal judges

The question of whether the speech is likely to incite is a thorny one, though it is certainly not insurmountable. Just ask the right-wing, racist, former shock jock (and one time FBI informant) Hal Turner. Turner was convicted of incitement after he responded to a decision by three federal judges, who upheld Chicago's handgun ban, by posting the judges' photos and work addresses, adding: "Let me be the first to say this plainly: These judges deserve to be killed."

U.S. politicians/pundits who may have crossed the line

The WikiLeaks press release which The BRAD BLOG recently posted after it was released following the deadly shootings in Tucson, provides a partial list of the individuals and statements that seem on par with Hal Turner's transgression.

WikiLeaks staff and contributors have also been the target of unprecedented violent rhetoric by US prominent media personalities, including Sarah Palin, who urged the US administration to "Hunt down the WikiLeaks chief like the Taliban." Prominent US politician Mike Huckabee called for the execution of WikiLeaks spokesman Julian Assange on his Fox News program last November, and Fox News commentator Bob Beckel, referring to Assange, publicly called for people to "illegally shoot the son of a bitch." US radio personality Rush Limbaugh* has called for pressure to "Give [Fox News President Roger] Ailes the order and [then] there is no Assange, I'll guarantee you, and there will be no fingerprints on it," while the Washington Times columnist Jeffery T. Kuhner titled his column "Assassinate Assange" captioned with a picture Julian Assange overlayed with a gun site, blood spatters, and "WANTED DEAD or ALIVE" with the alive crossed out.

*Limbaugh also said: "Back in the old days when men were men and countries were countries, this guy would die of lead poisoning from a bullet in the brain."

Of course, where Turner did not specify who should kill the three judges, many of the pundits and politicians were asking the U.S. government to murder Assange. Would that make the incitement unlikely under the second part of the Brandenburg test?

Consider convicted Watergate-era criminal and current Rightwing radio host G. Gordon Liddy's remark: "This fellow Anwar al-Awlaki --- a joint U.S. citizen hiding out in Yemen --- is on a 'kill list' [for inciting terrorism against the U.S.]. Mr. Assange should be put on the same list."

Consider the Obama administration's targeting of an American citizen merely "suspected" of being a terrorist for assassination in the context of Vice President Joe Biden's recent description of Assange as a "high tech terrorist," and you begin to see not only the likelihood of incitement but the real reason why the current U.S. Department of Justice has failed to initiate prosecutions of any of these high profile pundits and politicians.

The fact that President Obama has chosen not only to follow but expand a lawless 'Unitary Executive' that has engaged in secret wars, torture, and, now, the claimed right to execute an American citizen abroad without due process of law does not make lawful that which is decidedly unlawful.

Nineteen states have laws making it a crime to utter a terrorist threat. A terrorist "threat is...generally defined as threatening to kill another with the intent of putting that person in fear of imminent death and under circumstances that would reasonably cause the victim to believe that threat will be carried out."

Rightwing radio and Fox "News" host Glenn Beck's musings about wanting to kill Michael Moore, either himself or by hiring a hit man; Michael Reagan's call to "take out" and "shoot" 9/11 conspiracy theorists, he'll "pay for the bullet" (see video below), as well as the calls to assassinate Assange, who has been neither accused nor convicted of any crime related to these matters, would appear to fall within the definition of a "terrorist threat."

If we are still a government of laws, then surely there should be prosecutions of powerful pundits and politicians who use our public airwaves to broadcast terrorist threats that amount to incitement to murder. Death threats have no legitimate place within our nation's political discourse.

MEMO TO SARAH PALIN: When someone criticizes your use of violence-inciting words and imagery, they are not violating your First Amendment rights. They are simply exercising their First Amendment rights. Your effort, or that of your ghostwriter, to play the victim card is nothing short of Orwellian.

UPDATE 01/16/11 Last night, Brad Friedman posted an update relating to the arrest of J. Eric Fuller, who was shot in the knee by Jared Lee Loughner, after Fuller took the picture of a Tuscon Tea Party founder, and said, “You’re dead.”.

Brad's update raises the question of whether there is, as promised above the portico of the U.S. Supreme Court, "Equal Justice Under Law" when we deal with issues of incitement to commit violence.

If there is, then it should not matter whether the target of the threat is a government official, a 9/11 conspiracy theorist or a foreign journalist, like Julian Assange. It should not matter whether the author of that threat is an emotionally disturbed, 33-year old Norman Leboon, who was arrested when he threatened to kill Rep. Eric Cantor (R-VA), the son of a former President or the 2008 Republican nominee for Vice President.

In commenting on the Leboon arrest, U.S. Attorney Michael Levy said [emphasis added]:

The Department of Justice takes threats against government officials seriously, especially threats to kill or injure others. Whether the reason for the threat is personal or political, threats are not protected by the First Amendment and are crimes.

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Video montage of hate radio courtesy of Crooks and Liars and Bill Moyers Journal...

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Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968).