Turnip Threatens Hen

(and all the cabbages jeered.)

The organized hysteria continues.  On Monday, Donald Trump sought to rally his supporters by invoking the Supreme Court Issue.  This is standard fare for both heads of the hydra (aka “parties”), viz: “if nothing else, the Supreme Court, hangs in the balance... yadda, yadda, yadda.”

True to mantra, Donald Trump noted that the Right to Chose & Carry would be repealed in Hillary got to appoint anti-gun activists to the Court.

"If she gets to pick her judges, nothing you can do folks," Trump said at a rally. "Although the Second Amendment people, maybe there is, I don’t know..."

Once again, the Ink Gates were opened.

New York Times:  Trump Suggests Gun Owners Could Stop Clinton Agenda,

UK Guardian:  Republican hints at assassination of Clinton

CBS: Trumps gun comment interpreted as violent threat against Clinton

NBC: Did Trump just make An Assassination Threat against Clinton?

FBI contacted as Trump could face Criminal Charges for Violent...

FBI set to investigage Trumps Assassination Threat.

The first thing that might be noticed is that almost all of the shrieks resorted to a passive inflection.  They did not say that Trump made a threat but what he said was “seen” as a threat.  In other words,  the actual focus of the reports was less on the words Trump spoke than on a reaction by unnamed people as to what he said. The headlines might just as well have reported: “News Media Reacting Hysterically”  — In fact that was what Reuter’s essentially reported  ("Trump's remarks on gun rights, Clinton unleash torrent of criticism")   Reuter’s being one of the few news sources that still adheres reportorial objectivity.

Chipsters are loathe to throw cold water on the flames, but douse we must.   To begin at the beginning:

Threats

A threat is a statement of intent to inflict harm.  (Webster's Unabridged Dictionary (1913) [Threat, thret, n. Declaration of an intention or determination to inflict punishment, loss, or pain on another.].)

In many instances a threat takes the form of: If x then y where “y” is some harm, loss, pain, punishment.  The antecedent need not be stated explicitly but can be implied from the circumstances; e.g. where a wife says “I’m leaving you” and husband replies “I’ll fuck you up.” In this situation, the if-part is “adopted” by implication in the husband’s response. 

Similarly, the meaning of the consequent can also be implied from the circumstances, including the overall relationship of the parties. Suppose husband had said, “I’ll fuck you real good.”  Those words in themselves are ambiguous.  Whether they threaten a bad result or a good time depends on the circumstances.  This is why it is said that “all meaning is contextual.”

Suppose the husband had replied “You’ll regret that.” Is that a threat or a statement of hypothesized future fact?  If the tearful, quivering, wife comes into court and, through nose blowings and sobs states that she took it as a threat, does that end the matter?

Of course not. The wife my have experienced actual subjective fear but in a sane and civilized society people are not deprived of liberty on account of another person's purely subjective reactions.  Guilt and punishment are predicated on reasoned and objective factors.

The question becomes whether the wife’s alleged fear was reasonable in the circumstances, and this depends on whether her interpretation of the words themselves was reasonable and whether the words and/or circumstances objectively imparted grounds for taking the “threat” seriously.

In one California case, a teacher accidentally hit a student with a swinging door.  The student — probably a red head — immediately replied with “I’m going to fuck you up.”  The court ruled that a threat had not been made because a reasonable person would have understood that the words were just an angry reaction.  Nothing in the circumstances indicated an actual intent to instill fear in the teacher or a clear likelihood of the threat being carried out imminently.

With these types of situations in mind, a criminal threat is usually defined as existing when:

(1) that the defendant “willfully threaten[ed] to commit a crime” which will result in death or great bodily injury to another person, (2) that the defendant made the threat “with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,” (3) that the threat – which may be “made verbally, in writing, or by means of an electronic communication device” – was “on its face and under the circumstances in which it [was] made, . . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,” (4) that the threat actually caused the person threatened “to be in sustained fear for his or her own safety or for his or her immediate family’s safety,” and (5) that the threatened person’s fear was “reasonable” under the circumstances

If one goes through the checklist of factors carefully, paying attention to the English meaning of the words,  it is indisputable that Trump did not threaten Clinton. He was making a wise crack.  Bad taste, perhaps.  Threat? No.

According to op-edist Lucia Graves of the Guardian, Trump was also guilty of inciting the overthrow of democracy:   "I’ve no doubt that it’s an unequivocal call for the use of gun violence to upend democracy."   Graves needs to take a Cool Down pill.

Incitement

Under the English Common law speech could be outlawed if it had a “tendency to harm public welfare.”  It ought to be evident to anyone that such a standard was entirely arbitrary.  The standard ends up being a modulation between free roaming, hysterical fantasies regarding potential harm against a Precious, Noble, (Endangered) Cherished Good au gout.

Surprisingly, given the acknowledged intent and purpose of the First Amendment, the Common Law rule remained the law in the United States until 1969.

In Patterson v. Colorado,  205 U.S. 454 (1907) the Supreme Court applied the common law rule punish a journalist who had accused judges of acting on behalf of utility companies.

Patterson provoked alarm among judges concerned with constitutional liberties.  One such judge was Learned Hand (that was his name) of the federal district court for the Southern District of New York and partisan of the New Nationalism (aka “Progressive”) movement.  In  Masses Publishing Co. v. Patten , 244 F. 535 (S.D.N.Y. 1917), Hand announced the “imminent incitement” rule.  

  

Masses was an ultra left magazine sympathetic to the Russian Revolution. The Espionage Act of 1917 punished efforts to interfere with the armed forces and authorized certain forms of censorship, including the mailing of materials considered treasonous or seditious.  When the Postmaster General embargoed the Masses, the magazine sued for an injunction, which Judge Hand issued.

Hand refused to apply the “harmful tendency” rule.  He acknowledged that the magazine’s content might well arouse unrest among the people, causing them to criticize the war effort and the draft, but he held that such causal tendency was insufficient to overcome First Amendment rights.  Hand ruled that “agitation, legitimate as such” could not be equated “with direct incitement to violent resistance.”

Hand’s injunction was overruled by the Circuit Court of Appeal and two circus trials ensued. The trials were emblematic of what the “harmful tendency” rule engenders. Despite Hand’s adjuration (“I do not have to remind you that every man has the right to have such economic, philosophic or religious opinions as seem to him best, whether they be socialist, anarchistic or atheistic”) the jury hung 11 to one for conviction.  The hold out was a socialist and the jury tried to drag him out of court onto the street in order to lynch him.   Hand declared a mistrial. 

At the second trial the prosecutor invoked the image of a dead soldier in France, stating, “He lies dead, and he died for you and he died for me. He died for Max Eastman. He died for John Reed. He died for Merrill Rogers. His voice is but one of a thousand silent voices that demand that these men be punished.”   Again the jury hung.  No further prosecutions ensued but the Masses had been effectively suppressed.

Hand’s decision in Masses v. Patten was a “behind the bench” attempt to influence the Supreme Court to abandon the “harmful tendency” rule.  Unfortunately it did not succeed.

In Schenck v. Unites States 249 U.S. 47 (1919)  the Supreme Court upheld a conviction for handing out leaflets urging draft resistance, a crime.   The leaflets condemned the war as unjust and the draft as a violation of the XIII Amendment. It urged draft age men to “assert” their rights and "not submit to intimidation"
 

Writing for a unanimous Court, Justice Holmes ruled that Schenck’s leaflets had violated the law. He went on to state, “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the United States Congress has a right to prevent. It is a question of proximity and degree.”

Despite his popular fame, Holmes was not a very careful jurist.  California Chief Justice Roger Traynor once remarked that Holmes “thought he could decide complex issues with a quip.”  For 40 years, it was debated whether or not Holmes had adopted Hand’s test.   The reference to “proximity and degree” suggested that he had.  But  previous sentence, for which the case became famous, was simply a restatement of the “harmful tendency rule.”

Whether Holmes knew what he was doing or not, the confusion arose from his use of the word danger.  A danger is a “potential harm” not an actual one.  A potential harm is indistinguishable from “tendency to harm”     Had Holmes instead  formulated a “clear and present harm” rule, then he would have adopted Hand’s test.   A clear and present harm would be just another way of saying a direct and imminent violation of  law. 
  

 It was not until 1969 that he Supreme Court announced a standard for protecting free speech that in effect recognized his Masses opinion as law  In Brandenburg v. Ohio 395 U.S. 444 (1969), the court ruled that "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action.

Justice Hand was posthumously vindicated.

Under the Brandenburg Rule, Trump’s remark was clearly not an imminent incitement.  Trump did not advocate violence against Clinton.  What he said was that maybe Second Amendment people (which can be taken to mean “gun carriers”) might “do something” about Clinton’s Supreme Court appointments, “I don’t know.”  That was not advocating anything.   Even if it had done, it was nothing direct and imminent.

The Supreme Court has sanctioned speech far more violent than Trump's. In  Watts v. United States, 394 U.S. 705 (1969) the Supreme Court held that the statement “If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.” was not a threat and was protected by the First Amendment.  In NAACP v. Claiborne Hardware Co., (1982) An NAACP spokesman told an audience of Blacks “ that any ‘uncle toms’ who broke the boycott would ‘have their necks broken’ by their own people.”  The Court acknowledged that  this language “might have been understood as inviting an unlawful form of discipline or, at least, as intending to create a fear of violence."  Nevertheless it held that the “emotionally charged rhetoric . . . did not transcend the bounds of protected speech set forth in Brandenburg…"  In words particularly apropos, the Court stated,

"An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech.”

The key is imminence. When words act as an effectual trigger to violence their consequence is imminent.  When the don’t they are covered by the First Amendment. Suppose a group of intoxicated, belligerent Dixie Dumbos are standing on a corner being rowdy.  A Black man is seen walking on the other side of the street and  one of the dumbos cries out: "A nigger! Let’s go get the nigger and teach him a lesson.”  Those words imminently incite an illegal harm.  Someone declaiming at a rally or writing in a blog that "mud people" should be run out of white neighbourhoods does not imminently incite anything. 

Over and over again those who are offended by a particular remark resort to the argument that the words they found offensive “inculcated” an “attitude” or a “culture” which “leads to” violence.  Though decked out in a lot of impressive sounding sociological babble or uttered in the knowing tones of those who deem their truths to be self-evident, the law correctly rejects such rationalizations for limiting free speech. 

As James Madison said years ago.

"It could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency."  (Federalist Paper 10.)

Any attempt to punish speech on the grounds that it might or even will engender  "inapproprite" or anti-social "attitudes,"  "beliefs" or "ideologies" is simply an attempt to silence opposition.   Invariably the power-grab is made in the name of public safety. 

In the present case, the political and press establishments are a hydra united in an endeavour to destroy the Trump candidacy. That is their right, but the means they are choosing to do so are the means that have always been resorted to by witchunters and repressive  regimes.  While the politicians and the press can legitimately criticise Trump for appalling immaturity, to whip the flames of hysteria over a non existent threat or incitement is an imminent danger of its own. 

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