Feb. 9, 2016 SIGN IN | REGISTER

Wang: A Time for Reflection, Not Legislation

Barely 24 hours after a lone, deranged gunman shot Rep. Gabrielle Giffords (D-Ariz.) and others attending a constituent event, the recriminations had already begun. Never mind that there was “no evidence that the [gunman] ... was influenced by inflammatory political rhetoric,” as Washington Post reporter Robert Barnes noted. The denunciations of contemporary political discourse immediately began to resemble the supposedly toxic rhetoric itself. The local sheriff excoriated his fellow Arizonans for creating a “mecca for prejudice and bigotry,” while MSNBC’s Keith Olbermann blamed Sarah Palin for “amplifying violence and violent imagery in politics.”

Beyond verbal condemnation, some have also proposed legislative responses. Rep. Robert Brady (D-Pa.) announced he would introduce a bill to extend the current provision in the criminal statute addressing threats against the president to also cover Members of Congress. In Brady’s words, “[W]e are trying to criminalize behavior that puts bull’s-eyes over Members of Congress and their districts” — a reference to Palin’s “hit list” of incumbents whom she had targeted for defeat.

While an examination of the state of political discourse in America is appropriate in due course, perhaps now is too soon. In the emotional heat of the moment, Congress may find itself enacting legislation that is ill-considered in the long run. Such a reflexive response may not be the best way to honor the victims of this tragedy.

As a preliminary matter, contrary to Rep. Brady’s stated intent, his legislation would not have the legal effect of criminalizing heated political rhetoric, such as depictions of bull’s-eye targets over political figures. According to a news release from Rep. Brady’s office, his bill would amend Section 871 of the U.S. Criminal Code, which prohibits “any threat to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States, the President-elect, the Vice President, or other officer next in the order of succession to the office of President of the United States.” Brady’s proposal apparently would add Members and staff to the list of protected targets. (The bill’s text was not available when this article went to print.)

Over the past century that the law has been on the books, courts consistently have ruled that the statute addresses only specific and concrete threats to commit violence. In Watts v. United States, the Supreme Court ruled during the height of the Vietnam War that the law did not extend to “political hyperbole.” There, an anti-war protester who had just received his draft card boasted at a rally on the grounds of the Washington Monument, “If they ever make me carry a rifle, the first man I want to get in my sights is LBJ.”

The Supreme Court held that the criminal statute allows the president to “perform his duties without interference from threats of physical violence” but warned that “[w]hat is a threat must be distinguished from what is constitutionally protected speech.” The court concluded that the protester’s words were political hyperbole, rather than an actual threat.

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