Tuesday Talk*: A Sign of the Times

The billboard went up. It reflected the views of the owner of a North Carolina gunshop, which means it started with two strikes against it. The targets of its message reacted. The billboard came down.

And a member of Congress, the representative of Michigan’s 13th district, conclusively proved that Trump isn’t the only person in government utterly ignorant of our Constitution.

Elie Mystal and Ken White had a “debate” about it, during which Elie was Elie and Ken point out the “low hanging fruit” argument between hugs and kisses. While it clearly wasn’t incitement under Brandenberg, to the extent there is such a thing anymore, it was similarly clear that Ken found the billboard as repugnant as Elie. Protected, but awful.

The rationale was that it’s protected speech we suffer because the Constitution requires it, and if it did not, the people most likely to suffer are the marginalized and vulnerable. In other words, we suffer Free Speech for our own sake, not because there is any inherent virtue in speech with which we disagree.

At Volokh Conspiracy, Eugene dismembers the Brandenburg “incitement” concept.

It’s true that some tiny percentage of listeners may react to such criticism by deciding to violently attack its targets, whether the targets are on the Left or on the Right. But one basic premise of free speech isn’t that we don’t treat speech as “inciting violence” (a label for constitutionally unprotected speech, see Brandenburg v. Ohio (1969)), and suppress its communication to the 99.9999% of people who don’t act violently because of it, just because of a risk that 0.0001% would act violently.

But Eugene then goes to the heart of the problem, showing a deeper appreciation of Free Speech.

And that’s so even for much harsher speech, such as calling people traitors or fascists or other such labels that some might see as morally justifying attacks. It is even more clearly true of simply calling them idiots or “Four Horsemen” (for a famous earlier Four Horsemen reference, see here). That’s true, I think, not just a matter of law but also of political ethics: There’s no basis for morally condemning such speech as supposedly “inciting violence.” (One might mildly condemn it as being nonsubstantive, but that condemnation would of course apply to a vast range of common criticism, and of common praise, of political figures from both sides.) It most certainly does not “NEED[] TO COME DOWN.”

Is there something reprehensible about calling the Squad “four horsemen” or “idiots”? Is there anything improper about someone targeting four members of Congress, who have certainly not been shy about voicing their views, with criticism? Even harsh criticism (although it’s questionable whether this is particularly harsh)?

But Eugene’s view evoked the anticipated response, that these four representatives, women, of color, had received death threats, and therefore this criticism stoked the passion of those who would threaten them harm and, because it was a gunshop, seemed to offer the means with which to do so.

In an update, Eugene responded:

UPDATE: Some people seem to think that this speech becomes incitement of violence because it’s a gun store that puts it up, presumably because somehow viewers of gun store advertising are particularly likely to buy a gun and shoot a politician because she was called an “idiot” (and, obviously hyperbolically, an idiotic Horseman of the Apocalypse). No: Calling a politician an idiot, whether it’s on a gun store billboard or anywhere else, isn’t incitement of violence, whether as a legal or as a moral matter. It’s criticism, and one of the fundamental rights of free citizens.

Connecting the items sold by the store doing the criticizing doesn’t alter the legal framework at all, but what of the “moral” perspective?

Note also the implications of that sort of argument: If this sort of criticism becomes illegal or immoral when a gun store says it, surely the same must be even more so as to gun rights advocacy groups (which tend to have much more public stature than ordinary gun stores). Presumably it would be as to prominent gun rights advocates, too. And if something like “idiot” is “inciting violence” in that context, then of course most other criticisms would qualify. (Indeed, criticizing a politician as advocating bad policies would be slightly more likely to encourage violence than criticizing them for being “idiots,” not that either likelihood is substantial enough to warrant condemning the criticism.) What a convenient way for politicians and advocates to try to suppress criticism that comes from their political adversaries.

There’s no question that Tlaib’s cry of incitement is legally wrong and nonsenical, but have we reached the point where the First Amendment’s Free Speech Clause is something we suffer for the sake of its being turned against the “good people”? Is there no possibility that the billboard isn’t merely some hate speech to endure, but a legitimate political view that, for those who believe it, deserves to be seen?

*Tuesday Talk rules apply.

24 thoughts on “Tuesday Talk*: A Sign of the Times

  1. shenebraskan

    You have been an (almost) lone voice, crying in the wilderness, warning about future ramifications. Title IX and victims’ “rights” come to mind. Now we have the push for designation of more things as domestic terrorism, undoubtedly because the war on foreign terrorism has gone so swimmingly. Can armed domestic drones be far behind?

    Hard to even think about further assaults on free speech.

    Reply
    1. SHG Post author

      I must be wrong, as it’s getting awfully lonely being one of the few calling bullshit on woke. And, I note, seeing the donations to keep SJ afloat.

      Reply
  2. L. Phillips

    Move along. Nothing to see here. The effort to delegitimize a thriving, legal and at least constitutionally mentioned if not protected industry and avocation is proceeding apace.

    Smokers have been successfully shamed into holding corrals 35 feet from any known air source, followed closely by the lifetime branding of “child molesters”. That went so swimmingly the urge to rinse and repeat is too much to control.

    Reply
      1. LocoYokel

        That’s only because they haven’t been successful in closing them all down yet. The program to accomplish this is in progress.

        Reply
        1. L. Phillips

          We’re I a whiner I would point out that as a manufacturer of and repair station for fully automatic weapons I am regulated, inspected, and licensed by city, state and federal governments and told that I shouldn’t have access to the banking system that handled mortgage backed securities so well.

          Reply
  3. B. McLeod

    It is not surprising to see such complaints by supporters of the Gang of Four. Modern “progressives” generally seem to take the tack that “freedom of speech” does not extend to any speech that fails to at least conform with (if not advance) their own ideological perspectives.

    Reply
  4. The Real Kurt

    I’m waiting to see someone with more reach than myself propose the truly radical solution:

    Firearms training for all, starting in grade school, with the award of a handgun of choice and a thousand rounds of matching ammunition when graduation from high school is completed with at least a 2.5 grade average.

    We’d be having a much different conversation were that to be implemented.

    The Real Kurt

    Reply
  5. Casual Lurker

    For the moment, the 1A issue seems settled. As to whether it’s repugnant speech, that’s in the eye of the beholder.

    What I do know is, it’s brilliant, targeted, marketing. Throw in the Streisand Effect and I suspect the gun shop owner has had record sales for the last several days.

    I further suspect that he was just having some fun at “The Squad’s” expense. Unfortunately, the ‘woke’ just can’t seem to lighten up. C’est la vie.
    (I’m done. You can relax now).

    Reply
  6. MGould

    I have a minor issue with Prof. Volokh’s UPDATE argument. There is a distinction to be made between the political advocacy of a pro or anti gun control group, and the commercial speech of this billboard. Even in the unlikely case that a government convinced a court that an action against the billboard survives the intermediate scrutiny of commercial speech, that wouldn’t necessarily translate to the strict scrutiny enjoyed by political advocacy.

    Reply
    1. SHG Post author

      Has more gravitas in Latin (and hit the friggin’ reply button, FFS). Your point about Eugene’s update, that commercial speech prohibitions get intermediate rather than strict scrutiny, is correct, but just because it’s a billboard and includes the name of a business doesn’t make it commercial speech. Does it propose a commercial transaction by offering goods or services or representing their value or quality? Even so, intermediate scrutiny is applied to laws regulating commercial speech, not to the speech itself.

      That said, I would argue that is not commercial speech at all, and isn’t converted into commercial speech by the inclusion of the gun shop’s name.

      Reply

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