Time to clarify murky water, shall we? Five big points are being missed. They are vital to the future of our Republic, should help calm and define this churning moment in American history.
First, legal processes – constitutional and statutory – exist to mitigate foreseeable conflict. That is why the US Constitution contains Article II, section 1.2, defining how to electors are chosen. That is why Title 3, Section 15 prescribes how electors are counted. That is why our Founders permitted legal challenges to electors’ selection. Accordingly, calling US Senators “Nazis” and blaming them for senseless political violence – based on pursuit of legal process – is just wrong.
Second, political violence begets political violence. As a former Assistant Secretary of State, charged with supporting rule of law in corrupt and unstable countries, I have seen it the world over. That is why resolving political differences through street violence – attacks on public or private property, or persons – has never been legally acceptable in the United States. It was not acceptable in Shays’ and Whiskey rebellions, 1960s, summer 2020, or in mobbing the Capitol.
Notably, if any good comes from those jaw-dropping images of violence at the Capitol, it may be this: On left and right, from any perspective whatever, there should be a go-forward consensus that political violence is to be universally condemned – regardless of justification. Violent riots are anti-American, undermine law, must end. If all leaders accept that standard – we turn a page.
Third, a word about “incitement.” This is a legal term. It has a concrete meaning. It does not mean bad judgement, loose, negligent, improvident, irresponsible, or even reckless use of words in the conduct of politics, or any other venue – all legally permitted by the First Amendment.
Quite the reverse, “incitement” to violence requires specifics. The law is set by the US Supreme Court, which took a tough case at another time in American history bubbling with emotion, political and racial tensions, overlayed by foreign actors and engagements, rife with fear.
Against that backdrop, a liberal court in 1969 stood up for the First Amendment. The seminal case on “incitement” is Brandenburg v. Ohio. It involved what most would call reckless, unjust, dangerous advocacy of collective action, including a DC march. The Supreme Court was crystal clear. What was said was hostile, but protected by the First Amendment, not incitement.
A quick, dispassionate review of that Supreme Court case would be useful – including by the US House, which seems intent on substituting a lesser political standard for governing law, stumbling headlong into yet another ill-advised, country-splitting impeachment stampede.
Putting aside the horrible precedent of a rushed “two-week impeachment” – can you imagine what that would mean for future presidents? – the legal standard is being disregarded. It matters.
For the past 50 years, the High Court has rejected definitions of incitement that outlaw free speech based on a “clear and present danger,” “tendency” to sedition, or encouraging resistance. Instead, the standard is knowing intent to cause specific and imminent lawlessness – combined with the likelihood of that specific lawlessness occurring.
In short, inflammatory speech, if not expressly directing imminent violence, is protected by the First Amendment. That is why those questioning electoral integrity, complaining about potential fraud based on mail-in ballots, pursuing legal challenges to elector slates – and even talking briskly of resistance – are not guilty of “incitement.” That is why the US Justice Department has made clear no one is being prosecuted for “incitement.”
That said, we are at a crossroads. The First Amendment – once upheld by liberal Justice Earl Warren’s Court, in that unanimous Brandenburg opinion joined by Associate Justices Thurgood Marshall, William Brennan, Potter Stewart, John Harlan, Byron White, Hugo Black, and William O. Douglas – seems like ancient history. This realization leads to the next point.
Fourth, the First Amendment is under fire. Nowhere is this more obvious than in the past week’s crazy redefinition of permissible speech on “matters of public concern,” such as elections, election integrity, and constitutional processes – by media and social media outlets.
In a head-spinning series of unilateral, unprecedented decisions, major social media outlets – with near monopoly over public communications in this venue, exempted from legal remedy – literally shut down a president’s access to the venue, blocked, removed, or edited thousands of others. High tech then blocked access to competing social media options, with political bias.
Beyond selective media reporting, misreporting, and political activism, social media just flipped the table. They are literally now acting, with perceived immunity from prosecution, as final arbiters of political access to a major medium, dictating to citizens and political leaders who can speak, when, how, on what topics, with what passion, affiliations, intent, and consequences.
Plainly, in a representative democracy – based on the sacred role of corrective action through free speech – this cannot stand. How political and legal actors undertake to restore free political speech is unclear, but a good guess is State and Federal legislation, plus robust private litigation. Americans will not stand for being silenced, intimidated, cajoled, or manipulated by anyone.
So, what comes next? Likely rising public discontent, disaffection with leading media and social media, calls for corrective legal, legislative, market, and economic actions – including major market moves away from censoring venues. The average American is likely to get more politically involved – not less – when efforts aim to shut him or her out of public dialogue.
Call this five, a cautionary note for the moment, connecting dots. Because legal processes count and mitigate conflict, because political violence is unacceptable in America, because incitement has a real and legal meaning, and because the First Amendment is under fire, all Americans should be willing to step up and be heard, not remain docile, silent or – God forbid – fearful.
In short, our First Amendment is sacred, one reason it comes first. It says, Government “shall make no law … abridging freedom of speech.” That presumably means it is unconstitutional for a law to shield social media outlets intentionally abridging political speech, such as Section 230 of the Communications Decency Act. It also means citizens are empowered to speak up when free speech is infringed. Much is murky, but that much is not. Violence has no place in our political process, but vocal objection to being stripped of core rights certainly does.