SCOTUS: Brandenburg v. Ohio 395 US 444 (1969)- Incitement to lawless action is not protected speech

[ddeclue]

In Brandenburg v. Ohio 395 U.S. 444 (1969) the Supreme Court held: (1) speech can be prohibited if it is "directed at inciting or producing imminent lawless action" and (2) it is "likely to incite or produce such action."

As Congressman Lewis has stated, John McCain and Sarah Palin have been playing with fire, their speeches in the last week have first flirted with incitement to violence by calling Senator Obama a terrorist and then at least to THIS observer they clearly crossed that line into knowing incitement when McCain and Palin heard such violent utterances as "kill him", "off with his head", and "terrorist" from angry crowds and chose to continue on with further such comments without rebuking the crowds or moderating their statements.

Many states have laws against inciting a riot or inciting to violence.

Perhaps an attorney ought to investigate whether Senator McCain or Governor Palin have crossed any specific legal lines in their recent speeches in the states where those speeches were given.

[ColbertWatcher]

1. Just another case the GOP doesn't know about! Good find! k+r, n/t

[dflprincess]

2. This also shows how totally out of touch McCain is

He's even asking Obama to repudiate Lewis' remarks.

http://latimesblogs.latimes.com/washington/2008/10/mccain-obama-2.html

Democrat Rep. John Lewis likened the politics of Sen. John McCain and Gov. Sarah Palin to segregationist Gov. George Wallace.

McCain shot back his longstanding admiration of civil rights pioneer Lewis but said it was ridiculous to equate legitimate criticism of Barack Obama and his policies with Wallace and constituted "a brazen and baseless atack on.......my character and the thousands of hardworking Americans who come to our events."

McCain called on Obama to repudiate the attack, (:wtf:) which the freshman Illinois senator's campaign didn't really do later in the day.

So Lewis said, "George Wallace never threw a bomb. He never fired a gun, but he created the climate and the conditions that encouraged vicious attacks against innocent Americans who only desired to exercise their constitutional right."

He said McCain and Palin are "playing with fire and if they are not careful, that fire will consume us all."

McCain's side fired back that Lewis' assault was a character attack "shocking and beyond the pale."

However, I find Obama's response to this somewhat disappointing:

Later today, Obama's camp shot up a flare to disassociate itself from the worst of Lewis' statement, while not really rebuking the political ally who turned his back on the Clintons so helpfully at just the right time during the primary season. But added a qualifier to allow the odor of Lewis' remarks to linger.

"Sen. Obama does not believe that John McCain or his policy criticism is in any way comparable to George Wallace or his segregationist policies," said the campaign statement. "John Lewis was right to condemn some of the hateful rhetoric that John McCain himself personally rebuked just last night."

Personally, I think they should have just ignored McCain's request to repudiate Lewis or responded with a simple "No."

[sam sarrha]

3. were the people yelling "kill him" working for mcSame..?? that would be VERY BAD

[ddeclue]

5. That would be VERY hard to prove...

You would have to pick out one person in the crowd as the yeller and then tie them to the campaign as an employee and THEN prove they were directed to do so. The only way I know to prove this would be to get a confession from the yeller along with some corroborating evidence of some sort like an email or tape recording of a boss giving direction.

Doug D.

[ColbertWatcher]

15. Considering that most McCain-Palin rallies are as close to "invitation only" as one could get ...

... and the GOP have a history of filling the seats with employees (see: http://en.wikipedia.org/wiki/Brooks_Brothers_Riot">the Brooks Brothers Riot).

It probably a good chance the "yeller" was an employee of a GOP big shot.

[sam sarrha]

17. they are stupid enough to have a precinct worker do it.. Remember when Clinton was being threatened...

by a guy waving a gun indicating he'd use it on Clinton. ..
http://www.publiceye.org/eyes/gunsammo.html
a Baker listener from Francisco, a Martin Duran fired about 30 bullets at the White House.

and the hate speech reached a crescendo with a drunk guy crashing a Cessna into the White House....
http://tech.mit.edu/V114/N40/crash.40w.html

http://www.voxfux.com/archives/00000094.htm
"...snip, BUSH: "Motherly. And fatherly. I mean, that's just a normal reaction.
But the same would be true if something happened that was difficult for Jeb or for Doro or Neil or Marvin. And you can criticize me, but don't criticize my children and don't criticize my daughters-in-law and don't criticize my husband, or you're dead...snip"

[gordianot]

4. McCain must have been called down on his campaign by those in authority he claims to oppose.

Several things may have happened but McCain has been told to calm it down. In the interim McCain will continue to blame others for the mess he has created. Palin is just an ignorant and willing tool of John McCain, and is the best evidence the Alaska Independence Party has hit the big time.

A forthcoming riot is a real possibility, it is good that John McCain takes his weekends off. Monday should be real interesting.

[psychmommy]

6. his surrogates are still out there spewing lies.

there was a surrogate on w/shuster today. 3x shuster gave dude a chance to take back that talking point about ayers. reminded him what mchater said last night. mchater is talking nice while his campaign continues the hate.

[gordianot]

9. I wonder if he has been "told", if so it will take some time to get the word out.

He really can't put out an order in writing to those surrogates. It will be interesting to listen to Palin's stump speech when she is out on her own. I have not heard her latest lines today, is she still mentioning "Ayers"?

[psychmommy]

16. she took out terrorist

insert women shouldn't be burdened with a baby. insert words to incite the lunatic anti-abortion fringe. they know what they are doing. but, they are radioactive now. no other repubs will be seen with them. they are now a drag on the downticket races.

[unblock]

7. IMMINENT is a key word here.

inciting a riot that takes place within minutes of a speech is the problem. that's "imminent".

inciting someone to plot an assassination weeks, months, or years later is not "imminent".


explicitly advocating a crime, which they have not done, is another matter, but as long as they code their hatred, this is considered protected free speech.

despicable speech, surely; but protected nonetheless.

[ddeclue]

11. I don't know... there are less than 30 days left now before the election

this falls into the hours to days category not months...

Given the hard deadline of an election, just how close does it have to be to be "imminent"?

[ddeclue]

12. Also...when you can see the effects on your audience but ignore them

is THAT not "depraved indifference" should something happen?

It seems to me that if you see that you are stirring up a crowd into a homicidal frenzy but then continue on and do nothing to rebuke them that you have to have SOME kind of culpability if they do something wrong as a result.

[unblock]

13. personally, i think the "imminent" concept is wrong.

i think that the kind of hate speech that right-wingers have been giving has led to actual violence against abortion doctors, e.g., and could easily lead to violence against obama. the fact that a series of speeches might provide a motive for murder and encourage someone to start a methodical plot to assassinate someone months or years later do not, in my mind, make the speech any less heinous.

the standard should not be whether or not someone in the crowd actually does engage in violence swiftly; but it appears that that *is* the current standard.


having said that, i can't say i know what a better standard would be, nor can i say for certain that mclame/falin's speeches should violate whatever that standard might be. it's a pretty murky area when the speech is so non-specific. they're not literally pleading for violence, they're just asking for money and votes. however, they are doing so in a reckless fashion, putting a level of fear into the crowd that could easily push someone into violence.

but, as with clinton's "lies", just try finding the one statement that clearly violates the law or whatever standard should be the law. these people know how to go right up to that edge, how to communicate without actually saying.

[ddeclue]

14. It seems to me that if you hear people making threats you have a duty to rebuke them

and to report them to authorities and to moderate your speech immediately.

They didn't do this for days. Palin STILL hasn't done this.

[stillcool]

8. they let loose a virus..

knowing we are already ill.

[Metta]

10. Excellent post. Thanks.

:toast: