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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.