Over the past week, former President Donald Trump and his running mate, Ohio Sen. JD Vance, have been inciting threats and possible violence against the Haitian community in Springfield, Ohio, by advancing false claims that Haitian immigrants are grabbing people’s pets off the street and eating them.
Unfortunately, there’s not much that can be done to bring Trump and Vance to heel. As I’ve written before, there is virtually no enforceable law against incitement in the U.S., even though it’s one of just three categories of speech that may be censored, the others being serious breaches of national security and obscenity.
Although lies about pet-eating had been moving through the nether reaches of the online right for a while, Trump super-charged those lies last Tuesday in his disastrous (for him) debate against Vice President Kamala Harris. Here, again, is what he said: “In Springfield, they’re eating the dogs. The people that came in. They’re eating the cats. They’re eating — they’re eating the pets of the people that live there. And this is what’s happening in our country. And it’s a shame.”
Trump wasn’t clear about who “they” are, but the false rumor pertains to undocumented Haitian immigrants. Never mind that the vast majority of Haitian immigrants who live in Springfield are there legally.
Vance has played a more direct role in pushing this lie, as Heather Cox Richardson explains in her newsletter:
In late August, posting in a private Facebook group, a resident said they had heard that Haitian immigrants had butchered a neighbor’s cat for food. Vance reposted that rumor to attack Democratic presidential nominee Kamala Harris, on whom he is trying to hang undocumented immigration although it was Trump who convinced Republicans to kill a strong bipartisan border bill this spring. Springfield police and the city manager told news outlets there was no truth to the rumors.
Nonetheless, on September 10, Vance told his people to “keep the cat memes flowing,” even though — or perhaps because — the rumors were putting people in his own state in danger.
The result has been all too predictable, as bomb threats have been called in to schools, the Bureau of Motor Vehicles and other outposts in Springfield. On Sunday, a shooting threat targeting members of the Haitian community as well as a bomb threat left the campus of Wittenberg University in turmoil. All activities were canceled, and classes will be held remotely today, according to the Springfield Sun-News. Here’s a statement from university officials:
As the University continues to assess these threats in partnership with the Springfield Police Department (SPD) and FBI, all Wittenberg classes will be remote tomorrow, Monday, Sept. 16. Students engaged in field, clinical, or other off-campus experiences should follow the protocol of the agency where they are placed. Professors will communicate their expectations to their students.Faculty and staff are also expected to work remotely, except for essential employees. All events, athletics, and activities will again be canceled tomorrow.
Vance defended himself Sunday in an interview with CNN’s Dana Bash, though he presented no evidence that there is any merit to his false claims. At one point he actually said this: “The American media totally ignored this stuff until Donald Trump and I started talking about cat memes. If I have to create stories so that the American media actually pays attention to the suffering of the American people, then that’s what I’m going to do.”
By spreading vile lies about the Haitian community, Trump and Vance are wholly complicit in the chaos that’s descended on Springfield — and they will be just as complicit if worse happens. Yet the chances of either of them being held legally responsible are remote. The reason is a 1969 U.S. Supreme Court decision called Brandenburg v. Ohio, in which the court ruled that speech does not rise to the level of incitement unless it is likely to produce imminent lawless action.
At the time it seemed like a great advance. Over time, though, the flaws in that decision became clear. No less a free speech advocate than the late Anthony Lewis later concluded that the Brandenburg ruling had gone too far. I wrote about Lewis and his reservations about Brandenburg following a mass shooting in Buffalo in 2022. Here again is that post.
Incitement, Anthony Lewis and the toxic stew that inflamed the Buffalo shooter
May 17, 2022
The late New York Times journalist Anthony Lewis, whose writings on the First Amendment are essential to understanding free speech and freedom of the press, wrote that the legal standard for incitement to violence may have swung too far in the direction of allowing just about anything. I wonder what he would have to say about the toxic right-wing stew in which the Buffalo shooter immersed himself — 4chan, according to reports, but reinforced by broader cultural developments in which Fox News and Trumper politicians have embraced virulent forms of racism.
In 1969, the Supreme Court ruled in Brandenburg v. Ohio that a Ku Klux Klan leader demanding “revengeance” against Black people and Jews did not engage in incitement because his threat was non-specific. That is, he didn’t urge the mob he was addressing to march down the street and attack the first African American they came across. The idea was that the threat had to be “directed at inciting or producing imminent lawless action” is “likely to incite or produce such action” in order for it to rise to the level of incitement.
Did the court go too far? In his 2007 book “Freedom for the Thought That We Hate: A Biography of the First Amendment,” Lewis surveyed the landscape of the early 2000s and wrote this:
In an age when words have inspired acts of mass murder and terrorism, it is not as easy for me as it once was to believe that the only remedy for evil counsels, in Brandeis’s phrase, should be good ones. The law of the American Constitution allows suppression only when violence or violation of law are intended by speakers and are likely to take place imminently. But perhaps judges, and the rest of us, will be more on guard now for the rare act of expression — not the burning of a flag or the racist slang of an undergraduate — that is genuinely dangerous. I think we should be able to punish speech that urges terrorist violence to an audience some of whose members are ready to act on the urging. That is imminence enough.
The Brandenburg standard came into being only after many decades of evolution toward a less stringent understanding of incitement, beginning with Schenck v. United States (1919), in which Justice Oliver Wendell Holmes Jr. articulated the “clear and present danger” test. The decision, which includes Holmes’ famous admonition that you can’t falsely shout “fire” in a crowded theater, is widely reviled today, but it represented a step forward: It was the first time the court suggested that speech couldn’t be punished unless it presented such a danger.
If Schenck didn’t go far enough, perhaps Brandenburg, as Lewis writes, went too far. How can we redefine incitement in the age of social media? Breaking the connection between speech and action would have the effect of outlawing hate speech, which is currently regarded as coming under the protections of the First Amendment. Should we go down that road? Can we trust the current Supreme Court to do it in a way that addresses the problem without creating collateral damage? What unintended consequences would there be?
We have a horrendous mess on our hands. Hate speech on the internet presents dangers unlike anything we have dealt with before. As someone who’s pretty close to being a free-speech absolutist, I have real problems with any new government restrictions. But I do find it interesting that no less a friend of the First Amendment than Anthony Lewis had reservations about incitement. And Lewis was writing before social media and the dark web had gotten much traction.
We need a national conversation. Sadly, we are at a moment when we are ill-equipped for such an exercise.
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Anthony Lewis was a great man and Heather Cox Richardson is a great woman. Both are deeply committed to the best of American possibilities. Sometimes it is necessary to rethink one’s earlier thoughts and/or to learn from one’s mistakes. In any event, the internal dialogue must continue. In terms of the evolution of political thought and action, I am a fan of the Kennedy brothers. Each of them erred but each of them, in their own way, learned and improved their public service.
Uh-oh.
Gov. DeWine just reported that *all* of the bomb threats were hoaxes.
Some had overseas origins.
Murdering the Veep wouldn’t constitute “a national emergency”? Some foreign allies might disagree.