Was Sarah Palin’s blog incitement to Violence? – The extent of the First Amendment’s protection

In the wake of the appalling acts in Arizona perpetrated by Jared Lee Loughner, Aryeh Neier, in the Guardian, argued that the only method of preventing a recurrence was ‘the traditional remedy for bad speech: more speech.’ It has taken the murder of six and wounding of thirteen to suddenly jolt us into the realisation that the indiscriminate application of this theory has failed.

Neier was, essentially, justifying the extremely strict test of incitement to violence in the US. In fact, a State cannot prosecute individuals who encourage the use of violence unless this encouragement is directed towards producing imminent lawless action and that it was likely to do so (Brandenburg v Ohio).

The forerunner of the American free speech jurisprudence, Oliver Wendell Holmes, explained the severe prominence he attributed to free speech by maintaining that ‘the theory of our Constitution…is an experiment. As all life is an experiment…we wager our salvation upon some prophecy based upon imperfect knowledge.’ In other words, given the impossibility of going to the future and seeing whether liberty or restriction better serves security, we should always favour liberty. The case of the Arizona shooting, however, makes us wonder whether it should always be the case.   

The First Amendment allowed Sarah Palin to indicate with gun sights on her website, like the sword of Damocles, which Democrats her followers should ‘take a stand’ against. It permitted her to call on her Twitter followers to ‘RELOAD!’ rather than ‘retreat’ in targeting Democrats. It let the radio broadcaster, Rush Limbaugh, to imply that Julian Assange should have died from ‘a bullet in the brain’. It allowed Congresswoman Michele Bachmann to entreat her constituents that they be ‘armed and dangerous’ following the healthcare debate.

If we assume, in the same way that Neier did, that these calls and many others created ‘a climate in which Jared Lee Loughner thought he was justified in trying to kill Congresswoman Giffords’, then it is extremely bold to suggest that nothing should change.

It is arguable whether more speech would have made a difference. From a very early age we are told not to fight. We see politicians every day telling us that violence is not the answer. Gabrielle Giffords warned, in March 2010, that Palin’s violent rhetoric was likely to provoke some sort of reaction. At a rally in Nevada, Palin herself had said that ‘violence isn’t the answer’.

Unfortunately, this was not enough. One need look no further than the vandalism of Giffords’ office after the healthcare reforms had passed at the same place where the Tea Party had engaged in heated protests. Or else the threats Giffords faced by email. Or, even more bizarrely, Palin’s failure to denounce the cry of ‘kill him!’ by a crowd member as she was ranting about Obama at one of her rallies. 

A law that criminalised such incitement to violence should not be used, as Neier suggests, ‘as a means of punishing political dissenters’, On the other hand, dissenters need to refrain from  calling on people to reload their guns and target political opposition.  

Violence has no place in our society. This is the case even in political discourse, often given the greatest free speech protection. Whilst it would be wrong to censor subversive speech, where that speech spills into calls for violence it should be stopped in its tracks. In that context, the definition of incitement to violence as likely to produce imminent violence could be too limited . Otherwise irresponsible leaders can cultivate hatred over some months and develop a foundation whereby fanatics consider it necessary to take matters into their own hands. Simon Jenkins remarks, ‘Free speech cannot exist without chains.’ It is time to measure the power of words and their potential consequences.

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