JD Vance: “Keep the cat memes flowing.” Photo (cc) 2023 by Gage Skidmore.
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.”
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.
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.
Correction: An earlier version of this post identified 4chan’s hosting service. In fact, it was a porn site that uses the name 4chan but is otherwise unrelated.
Our thoughts at this time need to be with the Black community of Buffalo — and everywhere — as we process the horror of one of the worst mass murders of recent years. We need to do something substantive about guns, racism and white supremacy. What actually happened, and what we can do to prevent such horrific events from happening again, must be at the top of our agenda.
This blog, though, is primarily about the media and often about free speech. So let me address some of the secondary issues. The shootings intersect with notions of hate speech, social media and the role of Fox News in mainstreaming dangerous racist ideologies such as so-called replacement theory, which holds that the left is trying to push out white people in favor of non-white immigrants in order to obtain an electoral advantage.
When pressed on how she planned to confront such hate speech online, without impinging on First Amendment rights, Ms. Hochul noted that “hate speech is not protected” and said she would soon be calling meetings with social media companies.
Hochul is wrong, and the Times shouldn’t have used “noted,” which implies that she knows what she’s talking about. If hate speech were illegal, Tucker Carlson would have been kicked off Fox long ago.
What’s illegal is incitement to violence, and you might think whipping up racist hatred would qualify. In fact, it does not — and the very Supreme Court case that made that clear was about a speaker at a rally who whipped up racist hatred. Brandenburg v. Ohio (1969) held that a ranting Ku Klux Klan thug demanding “revengeance” against Jews and Black people had not engaged in incitement because his threats were non-specific.
Hochul can cajole and threaten. And she should. But it’s going to be difficult to do much more than that.
As for the media themselves, that’s a morass, and it’s too early to start sorting this out. But the shooter reportedly fell down the 4chan hole during the pandemic, immersing himself in the racism and hate that permeate the dark corners of the internet. There are a lot of moving parts here, but it seems unlikely that a young mass murder-in-the-making was sitting around watching Fox, even if some of his rants paralleled Carlson’s rhetoric. Fox’s role is to mainstream such hatred for its frightened, elderly viewers. The radicalization itself happens elsewhere.
So, are we going to ban 4chan? How would that even work? If the government tried to shut them down, they could just go somewhere else. I’m sure Vladimir Putin would be happy to play host.
4chan represents the bottom of this toxic food chain; Fox News is at the top. In the middle are the mainstream social media platforms — Facebook, Twitter, Twitch (which allowed the shooter to livestream his rampage for nearly two minutes before taking it down) and the like. It’s too early to say what, if anything, will happen on that front. But it’s probably not a good time to be a billionaire who wants to buy Twitter so that there will be less moderation on the platform than there is currently.
Donald Trump in 2016. Photo (cc) by Gage Skidmore.
Suzanne Nossel, the chief executive of PEN (Poets, Essayists and Novelists) America, is concerned that the second impeachment of Donald Trump could be used to weaken the legal standard for convicting someone of incitement to violence. I differ with her New York Times op-ed, and in fact I think criminal charges could be brought against Trump without doing any harm to the First Amendment.
Nossel, a lawyer, rightly differentiates between the impeachment proceedings, which are based on a layperson’s definition of incitement, and the legal definition. By any reasonable measure, Trump whipped a mob into a frenzy on Jan. 6 and pointed it in the direction of Capitol Hill, a reckless action that led to five deaths, including that of a police officer.
The legal standard, as Nossel explains, is much more narrow, based on the 1969 case of Brandenburg v. Ohio, in which a Ku Klux Klan leader, Clarence Brandenburg, was convicted of incitement under Ohio state law after telling those attending a rally that they should take “revengeance” upon Black and Jews. The Supreme Court overturned the conviction, ruling that Brandenburg’s threat wasn’t imminent or specific enough.
The Brandenburg decision was the culmination of a series of court rulings going back to Schenck v. United States (1919), in which Justice Oliver Wendell Holmes Jr. offered his famous metaphor that the law does not protect falsely shouting “fire” in a crowded theater. The standard the court arrived at was that speech could be banned if it presented a “clear and present danger.”
The Schenck decision is often reviled as repressive today, but it was a step forward at the time. For the next 40 years, the court sought to refine and narrow what was meant by a clear and present danger, finally arriving the Brandenburg standard. As Nossel explains, the legal definition of incitement is based on the idea that the language in question was intended to cause violence; that the threat of violence must be imminent; and that the language must be likely to result in violence.
I read the transcript of Trump’s remarks, and it seems to me that they could support an incitement conviction. First of all, there is the context. Trump lies, at great length and in fine detail, about the outcome of the election. You’ve heard it all before, but right near the beginning he says this:
All of us here today do not want to see our election victory stolen by emboldened radical left Democrats, which is what they’re doing and stolen by the fake news media. That’s what they’ve done and what they’re doing. We will never give up. We will never concede, it doesn’t happen. You don’t concede when there’s theft involved.
Now you might say Trump actually believes this. But over the weekend it was reported that Trump, in the White House, has railed about his defeat with associates. According to Axios, he has gone so far as to say, “Can you believe I lost to that fucking guy? That fucking corpse?” So he knows. He’s lying. And though that lie doesn’t amount to incitement, it prepares the crowd for what follows.
The most incendiary language comes at about the 18-minute mark:
After this, we’re going to walk down and I’ll be there with you. We’re going to walk down. We’re going to walk down any one you want, but I think right here. We’re going walk down to the Capitol, and we’re going to cheer on our brave senators, and congressmen and women. We’re probably not going to be cheering so much for some of them because you’ll never take back our country with weakness. You have to show strength, and you have to be strong. We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated.
Trump immediately follows up with what could be considered exculpatory language: “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.” But we’ve heard him do this many times over the years. If you’re on the jury, would you let him off the hook because, in course of an hour-long speech aimed at stirring up a frenzy, he used the word “peacefully” — once?
Later in his speech, he says, “We got to get rid of the weak congresspeople, the ones that aren’t any good, the Liz Cheneys of the world, we got to get rid of them. We got to get rid of them.” Again, maybe there’s just enough ambiguity here — that sentence is preceded by “a year from now, you’re going to start working on Congress.” That sounds like he could be referring to primary challenges. But Cheney and other Republicans who voted for impeachment are receiving death threats, The Daily Beast reports, and it’s hard to make the case that Trump’s words didn’t have more than a little something to do with it.
I think we also need to keep in mind that Trump took part in a rally at which his son Donald Trump Jr. and one of his lawyers, Rudy Giuliani, spoke even more recklessly than he did. Giuliani spoke of a “trial by combat,” which he ludicrously claimed later was a reference to “Game of Thrones.” Trump Jr., among other things, said:
It [the gathering on the National Mall] should be a message to all the Republicans who have not been willing to actually fight, the people who did nothing to stop the steal. This gathering should send a message to them: This isn’t their Republican Party anymore. This is Donald Trump’s Republican Party.
Again, Junior could, at least in theory, have been referring to primary challenges. But he was speaking to an angry mob, not a gathering of precinct captains. We have to look at what he had to know the effect of his words would be. There’s no reason we have to interpret what he said in a light most favorable to him.
In other words, it’s possible that Giuliani and Trump Jr. could be in legal jeopardy. And it’s also possible that a jury could use what they said to clarify the president’s own statements.
Would it be wise to prosecute Trump for incitement once he’s out of office? Probably not. This is a close enough call that there’s a good chance he’d be acquitted, which would make the case against him look like a politically motivated attack by his enemies. The best route, it seems, is to hope that the Senate convicts him by the necessary two-thirds vote followed by banning him from holding office in the future, which only requires a majority.
In any case, a possible incitement prosecution is likely to be the least of Trump’s concerns once the clock hits 12:01 p.m. on Wednesday. He faces financial ruin and endless legal problems, both civil and criminal. If he pardons himself, that will be challenged in court. If he prevails, he still faces trouble in a number states, which are not bound by a federal pardon.
But an incitement prosecution is an interesting thought exercise. It could well be that Trump went further than Clarence Brandenburg, sheets and all, in unleashing mob violence. That’s quite a distinction.
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I don’t often find myself in disagreement with the ACLU. But we part company in the case of Michelle Carter, the young woman who was found guilty of involuntary manslaughter for urging her boyfriend, Conrad Roy III, to follow through with his threats to commit suicide. Here’s what Matthew Segal, legal director of the ACLU of Massachusetts, has to say:
Mr. Roy’s death is a terrible tragedy, but it is not a reason to stretch the boundaries of our criminal laws or abandon the protections of our constitution.
There is no law in Massachusetts making it a crime to encourage someone, or even to persuade someone, to commit suicide. Yet Ms. Carter has now been convicted of manslaughter, based on the prosecution’s theory that, as a 17-year-old girl, she literally killed Mr. Roy with her words. This conviction exceeds the limits of our criminal laws and violates free speech protections guaranteed by the Massachusetts and U.S. Constitutions.
The implications of this conviction go far beyond the tragic circumstances of Mr. Roy’s death. If allowed to stand, Ms. Carter’s conviction could chill important and worthwhile end-of-life discussions between loved ones across the Commonwealth.
Although I don’t think the legal concept of incitement ever came up during the Carter trial, it makes for a good analogy. Over a number of decades, the concept of incitement to violence was refined and narrowed by the Supreme Court, starting with Oliver Wendell Holmes Jr.’s assertion in 1919 that you can’t falsely shout “fire” in a crowded theater. Finally, in Brandenburg v. Ohio (1969), we arrived at the standard we have today: Speech is not protected by the First Amendment and may be punished if it is “directed at inciting or producing imminent lawless action” and is “likely to incite or produce such action.” Anything that does not rise to that high level is protected, which is why Brandenburg is an important guarantee of free expression.
I am not a lawyer, so caveat emptor. But it seems to me that Carter’s texts to Roy were directed at inciting him to commit suicide and were likely to lead him to take his life. Yes, I know that this was not an incitement case involving mob violence. But I don’t see how the guilty verdict in the Carter case changes our understanding of what is protected speech and what isn’t. We are not less free today than we were before the verdict was rendered.
In today’s Boston Globe, civil-liberties lawyer and friend of Media Nation Harvey Silverglate explains in chilling detail the constitutional underpinnings — or, rather, the absence of such underpinnings — in the 2012 conviction of Al Qaeda sympathizer Tarek Mehanna.
Mehanna’s conviction on charges related almost entirely to his labors as a propagandist and translator led to the first of two Muzzle Awards for U.S. Attorney Carmen Ortiz. (The second was for her unconscionable crusade against the young Internet visionary Aaron Swartz, who committed suicide while facing prison for downloading academic articles without permission.)
Silverglate and his associate Juliana DeVries write in the Globe that the First Circuit Court of Appeals recently upheld Mehanna’s conviction and 17-year prison term on the basis of a 2010 U.S. Supreme Court decision, Holder v. Humanitarian Law Project. That decision, Silverglate and DeVries write, “allows federal prosecutors to bring charges for a wide range of expressive activities that supposedly constitute ‘material support’ to terrorists.”
Such a standard would appear to fly in the face of rulings such as the landmark Brandenburg v. Ohio decision of 1969, in which it was held that even vile, hateful calls to violence (the case involved the Ku Klux Klan) were constitutionally protected unless they were likely to result in an immediate conflagration. Silverglate and DeVries put it this way:
With the Humanitarian Law Project decision, the civic life of our free nation took a radical, though under-appreciated, turn for the worse. “Material support” is now a top contender for the American equivalent of the Soviet (now Russian) “hooliganism” statute, a notoriously vague criminal law that enabled the imprisonment of any opponent of dictator Josef Stalin’s regime…. A “material support” charge is a product not of our nation’s legitimate anti-terror concern, but of its overreaction and paranoia.
The Mehanna case was not entirely clear-cut from a legal point of view. He was also convicted of seeking (unsuccessfully) to join Al Qaeda fighters in Yemen and of lying to the FBI. But Ortiz went out of her way to prosecute Mehanna for his expressive activities, and his loathsome rhetoric was given an ample airing before the jury.
Mehanna is no mere Sudbury pharmacist, as his supporters would have you believe. But it is a fact that he is serving a prison term today because he expressed what he was thinking — an activity that is supposed to be protected by the First Amendment under nearly all circumstances.
Several years ago the late Anthony Lewis wrote a wonderful primer on the First Amendment called “Freedom for the Thought That We Hate.” Sadly, that freedom is becoming more and more a part of the past.
Booking photo of Mehanna in 2009 from the Sudbury Police as published at Boston.com.
It was Peter Gelzinis’ column in today’s Boston Herald that got me thinking about the case of Tarek Mehanna, the Sudbury man on trial for terrorism-related charges in U.S. District Court in Boston.
Mehanna’s lawyer, J.W. Carney, argues that Mehanna’s activities have been limited to advocacy on behalf of Al Qaeda, which is protected by the First Amendment. But prosecutors, as Milton Valencia reports in today’s Boston Globe, have been suggesting that Mehanna is guilty of actual terrorist activities, including traveling to Yemen to receive training.
So I sat up and took notice when I saw this quote in Gelzinis’ column, in which federal prosecutor Aloke Chakravarty tells the jury that Mehanna had translated documents such as “39 Ways to Serve and Participate in Jihad” into English. “Simply agreeing to do that is a crime in this country,” Chakravarty said.
Well, it may be a crime, but if it is, the law under which Mehanna has been charged is almost certainly unconstitutional. Essentially, Mehanna is being charged with incitement to violence, a category of speech that is not protected by the First Amendment, and can thus be prosecuted. But the U.S. Supreme Court has made it clear that speech cannot be considered incitement unless it presents a genuine threat of immediate harm — a right-here, right-now standard that does not apply to general calls for violence.
In 1969, the court ruled that a Ku Klux Klan leader named Clarence Brandenburg could not be prosecuted for calling for “revengeance” (no, not a word, but Klan leaders tend not to be too brite) against Jews and African-Americans, ruling in Brandenburg v. Ohio:
Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
Eight years later, the courts overturned efforts by officials in Skokie, Ill., aimed at preventing a neo-Nazi group from marching through the streets of their community. The Supreme Court, having spoken in the Brandenburg case, declined to get involved.
To the extent that Mehanna’s alleged crimes amount to pure advocacy, even of violence against the government and of terrorism, his speech is protected by the First Amendment. As Carney says, “We can hold onto these views, and we can speak them, even if it’s what upsets the United States government. It’s what makes the United States so great, so strong, and so free.”
I find it shocking that Chakravarty read to the jury an ode Mehanna allegedly wrote to commemorate the terrorist attacks of 9/11. If that isn’t protected speech, well, I don’t know what is. It’s the speech we find most loathsome that is in the greatest need of protection. Keep that in mind as this case moves forward.
