At one of his raucous rallies, Donald Trump gives a shout-out to a Republican congressman who body-slammed a reporter, and the crowd cheers. Eric Holder urges fellow Democrats to “kick” Republicans, and the audience eats it up.
We could pile up lots of examples of such political rhetoric. Odious? Sure, but it has been a staple of politics since . . . well, since there has been politics. And to suggest that we have now reached a demagogic nadir in American history is to lack acquaintance with American history.
For present purposes, though, I am not trying to make a point about unloveliness or incivility. I want to make a point about law and common sense: Incendiary political rhetoric does not make people commit mass-murder attacks.
I have watched the bomb scare of the past couple of days with fascination. That, of course, is because I’ve had unusual connections to this sort of behavior — I’ve protected people who were in danger as a deputy U.S. marshal in the Witness Protection Program; and I was a protected person myself for a couple of years when there was a threat against me as a prosecutor. That threat happened to have been in connection with a terrorism case. The case involved bombings, and the explosive devices in the evidence ranged widely in levels of sophistication: from crude pipe bombs and Molotov cocktails, to ANFO bombs (ammonium nitrate and fuel oil), to the 1,400-pound urea nitrate–based bomb used in the 1993 World Trade Center attack.
Bomb construction is dangerous business. It is frightening how readily a powerful explosive can be assembled out of everyday accessories (jihadists infamously use a manual called “Make a Bomb in the Kitchen of Your Mom”). But that being the case, competence levels of bomb makers vary widely. Even people who seem to know what they’re doing can be reckless (the WTC bombers kept nitroglycerine, a volatile explosive liquid, in the refrigerator); and, as former terrorist Bill Ayers could tell you, incompetent bombers can just as easily blow themselves up in the construction process as blow the rest of us up in an attack.
Consequently, the most intriguing investigative question about the pipe bombs that have been targeted, through the mail, at prominent Democrats is: What was the objective?
We are reportedly up to as many as nine explosives, none of which actually exploded. At least one, the device delivered to CNN and intended for former Obama CIA director John Brennan, is said to have been a dummy — it contained no blasting cap or other detonator. That means we are almost certainly dealing with one of two kinds of terrorist: a very incompetent bomber, or, more likely, someone (or some group) that was trying to intimidate the recipients by creating a climate of fear without actually killing or maiming any one — the same way harmless powder is sometimes sent to victims under circumstances that make it look like an anthrax attack.
Unfortunately, we are not talking about the apparent bomber’s objective. In our hyperpolitical moment, we are talking about motive — about what must have set the bomber off. In a nutshell, each side of our political debate contends that the other’s belligerent bombast may be responsible for the violence (or threats of violence). In this instance, because the targets are prominent Democratic critics of President Trump, the anti-Trump media frames the case as if Trump incited the bomber.
It is a ludicrous charge.
I happen to be one of few people in America to prosecute an incitement case — in federal law, it is known as “solicitation to commit a crime of violence,” section 373 of the penal code. Here is what I can tell you: It is really hard to convict people of inciting violence, as it should be.
We have a strong constitutional tradition of free speech. Our law reflects our keen awareness that offensive speech, speech that moves or even angers us, is protected expression. There is no right not to be agitated or otherwise inspired.
It may be a great political talking point to blame violence on provocative bilge. Maybe it poll-tests well. But the accusation would get laughed out of a courtroom. If you leave political narrative and cross into the real world of facts, evidence, and the wisdom of everyday experience, here’s what you know: You hear a barnburner of a speech. Maybe it gets you riled up. Maybe you are moved to work harder to defeat your political opponents. But people do not leave a political rally saying to themselves, “What he said about those bastards really ticked me off; I think I’ll go commit a mass-murder attack.”
To prove that the Blind Sheikh (Omar Abdel Rahman) incited and solicited terrorist attacks, it was not nearly enough to show that he made incendiary speeches. We had to prove that he was an authority figure within an ideological system that clearly taught violence as a duty against enemies; he issued unambiguous commands to violence that there was no doubt he intended others to carry out; and the surrounding circumstances corroborated his intent — he had ordered murders and jihadist attacks in the past, and they’d been carried out.
That is incitement. The political rhetoric we are hearing today is not in that league — not from the president, nor from, say, President Obama when he metaphorically urged Democrats to bring a “gun” to the political battle if their opponents brought a “knife.”
Please don’t get me wrong. A lot of the speech we’re hearing from politicians is reprehensible. It’s a sign of the times, a reflection of the coarsening of our culture, and indicator of how we’ve lost respect for ourselves and the civility and good manners that go with it. We should demand better from our political officials, but we wouldn’t have to demand it if we’d exhibit it.
There has, moreover, long been a category of speech, usually referred to as “fighting words,” that has been given minimal constitutional protection because it patently insults and incites. Some First Amendment scholars contend that there is not much left to this free-speech exception; the speaker, after all, is permitted to offer offensive ideas, his liberty cannot be contingent on how his audience might react. But I do not mean to suggest that it is inconceivable that any but the most palpable incitements could ever be actionable. If politicians explicitly call for violence, and violence results, they should be held politically accountable, regardless of whether the circumstances allow for their prosecution.
My point is simply this: No one goes on a bombing spree because of something heard at a political rally. No normal person is moved to murder because he hears an ideological firebrand demonize his opponents. People who engage in mass-murder and other forms of terrorism are either committed to a violent movement or mentally disturbed. In neither event is that attributable to political rhetoric.
Of course we should elevate our discourse. If you want to condemn reprehensible speech because it is reprehensible, I’m right there with you. But let’s not pretend it’s something it’s not. Terrorism and murder are heinous offenses that we punish severely because they involve agency — the people who commit them make a conscious, individual decision, for which they are responsible. We should not, in order to score political points, trivialize such atrocious conduct by suggesting it has been triggered by purple political prose.