Walter Olson at Point of Law explores the question of whether the inflammatory rhetoric that’s hit the fan this week violates a legal duty, under an incitement to riot analysis as argued by Susan Kuo at Concurring Opinions.

[Do] the GOP candidates might have a “legal duty” to tone down their attacks, lest supporters of theirs commit (still-hypothetical) acts of impulsive rage that would never have taken place otherwise. Invoking the Model Penal Code, she explores the possibility of assigning criminal responsibility to the candidates for not cooling it with their language despite the knowledge that there are unhinged partisans out there.

This is one of the reasons why people hate lawyers.  Too often, we see something that has the possibility of doing harm, and try to fit it into a legal paradigm despite a clearly bad fit, and certain prematurity.  When I first saw Kuo’s post, it seemed too obvious for words that no one in the McCain camp, and most assuredly not McCain himself, sought to incite anyone to violence. 

Did he want to incite them to a passionate support of his candidacy?  Absolutely.  But that’s precisely what all candidates seek.  One doesn’t become an accomplice to a crime because some nutjob in the audience, boiling over with rage and righteous indignation, decides to make a left turn toward harming the other candidate instead of a right turn into the voting booth.

At PrawfsBlawg, Howard Wasserman confronts the ugly lawyer tendency to frame issues in terms of law, distinguishing ugly rhetoric from criminal conduct.

“I cannot buy the notion being floated that anything unlawful is happening. … ugliness is not unlawfulness. And whatever criticism the [Republican] campaign warrants for engaging in personal attacks and riling up the crowd, charges of engaging in ‘borderline incitement’ should not be among them.”

What is happening reflects a judgment issue, where one can properly question whether, in the zeal of the campaign, either strategy or heat has led candidates to push too hard, go too far, turn up the heat too high, so that the net result is beyond their intended goal and will lend itself to going to a place that no rational person wants. 

As I contended yesterday, I believe that John McCain has come to realize that his campaign’s rhetoric has gone too far, giving rise to the wrong reaction in some unhinged supporters.  I believe that he recognizes that he has created a real problem, and would like to rein in the rage, but has to figure out how to do so without making himself and his running mate not look foolish or cause the angry crowd to turn its rage on them.  Being booed at your own rally isn’t easy to do.

But this isn’t a legal issue, and John McCain has not become a “willing co-conspirator,” as he bizarrely  accused some Democratic legislators the other day, in a plot to harm Obama.  It’s just inflammatory rhetoric gone too far, and instead of reflecting poorly on Obama’s judgment, it calls into question his own.