Gabrielle Giffords, Sara Palin, Violent Rhetoric, and the Constitution

When a man plots and tries to assassinate a Congresswoman, it is natural to think that her politics has something to do with it. To be sure Gabrielle Giffords is Jewish and a woman, but she is not the only Jew or woman or Jewish woman in Arizona. It is also natural to think that the violent rhetoric of our time including Sara Palin’s placing of Giffords' congressional district in the crosshairs of a weapon and her “reload” comment and including the remarks of Griffords' election opponent Jesse Kelly who asked for help against her which he characterized as shooting “a fully automatic F-16.” Griffords herself said that rhetoric like Palin’s has consequences.

But segments of the right wing and the media including the Los Angeles Times caution that Giffords was shot by an unstable man and that violent political rhetoric may have had nothing to do with it. Maybe so. But crazy people are perhaps the most likely to be affected by this rhetoric. There is no incompatibility between being mentally unstable and being affected by violent rhetoric.

Our polity is constitutionally commited to robust, wide-open political commentary. There are limits. For example, advocating illegal action is not protected when it is directed to inciting and producing imminent lawless action and likely to produce imminent lawless action. Threats are not protected. So an abortion site that put up abortionist “guilty” posters of doctors who performed abortions together with their names, addresses, photographs, and license plate numbers was ruled to be an unprotected set of threats by the Ninth Circuit Court of Appeals in the context of abortion violence in which three posted doctors had been killed. It was not necessary that the site itself threatened to personally engage in violence it was the intent to intimidate that was crucial. Planned Parenthood of Columbia/Willamette Inc. v. American Coalition of Life Activists, 290 F.3d 1058 (9^th Cir. 2002).

I do not maintain that Palin’s crosshairs or reload rhetoric or Kelly’s F-16 rhetoric crossed the Constitutional line. Palin was targeting congressional representatives for political defeat; Kelly was engaging in political hyperbole. But the Constitution protects a lot of irresponsible rhetoric and political lepers including Palin and Kelly. Unfortunately, their rhetoric draws a following, and so long as it does there will be demagogues who will seek to lead them.