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.
Similarly, lower courts have declined to uphold convictions where a defendant stated, “If I got hold of President [Woodrow] Wilson, I would shoot him,” while another was described as saying, “If someone does not kill [the president], he, the defendant, had a notion to do it himself.” In both cases, the courts held that the language used was too vague and ambiguous to be punishable under the law. Whatever one thinks about rhetoric urging voters to seek “Second Amendment solutions” or depicting Members of Congress in cross hairs, it is difficult to see courts upholding convictions for such speech in light of these existing legal precedents.
As for whether Congress should go beyond Rep. Brady’s proposal and attempt to prohibit merely “vitriolic” political rhetoric, let us not forget that, when House Members read the Constitution to kick off the 112th Congress, the provision Rep. Giffords read so eloquently was the First Amendment. As the Supreme Court noted in the Watts case, this country has “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
Civility in politics is a worthy and important aspiration, but not everything that is good can be legislated. Given our inherently adversarial electoral system, it would be virtually impossible to determine when a candidate’s “legitimate” criticism of an opponent crosses the line. Moreover, acrimony in political discourse is not new in America. As the Supreme Court has observed, “The language of the political arena ... is often vituperative, abusive, and inexact.” That was in 1969, and the country has not come apart at the seams, notwithstanding our failure to regulate political “vitriol.” This is not to shrug off tragedies like the Arizona shootings, but rather to caution against quick legislative fixes. For now, let’s just take a moment to reflect and pray for Rep. Giffords, the other victims and their families.
Eric Wang is a political law attorney. He can be reached at firstname.lastname@example.org.