Why Sarah Palin is Guilty!

Originally posted by WeRpeons
reply to post by loam

 

I think this unfortunate tragedy has opened some eyes and politicians now need to stop attacking each other and start working together to solve this countries problems. When you create an atmosphere of rhetoric it's hard to trust anyone, let alone work together for the common good.

No offense to you, but whenever I see a post insinuating that the politicians on EITHER side actually want to solve the country's problems, I have to laugh. The vast majority of politicians just do whatever it takes to keep the campaign money rolling in. The term "common good" is totally alien to them.

I do see your point loam. But, I also think we need to continue the conversation and flesh out the arguments. ...My goal with you is to investigate the possibility of protecting the Constitution, including Freedom of Speech and the Press and the Right to Bear Arms, AND still hold people accountable for the consequences of their speech and actions. ...Does accountability necessarily trod on the right to speak freely?

reply to post by loam

I do not believe the government can sufficiently define what speech or art are prohibited because of the "indirect" consequences they *might* produce. From my perspective, allowing the government to make these determinations against speech or art is as sure an invitation to tyranny as any direct one.

I agree, absolutely. But you are talking about "modifying" the Constitution to include preventive and "anticipatory" legislation - which is what Canada has, I believe. (Rights with qualifications. :dn

I am talking about leaving our Rights and Freedoms and the whole Constitution intact, but demanding a kind of legal accountability. Ie., if you tell someone to go out and shoot someone else, then you are accountable.

I'll use our board history, again as an example. I understand that you believe our posts have always been written responsibly. But you can't deny we are passionate advocates for certain issues or concerns. What if some ATS member nonetheless commits a crime and expressly attributes it to one of your threads? Do you really think you should have to defend yourself from government prosecution in this scenario? Where is the line drawn on "indirect" culpable statements or art?

"Where is the line drawn on "indirect" culpable statements or art?" ...It's not relevant. My question referred to direct and indirect consequences, not 'indirect' statements or art.

The line between "clear direction" and "ambiguous implication" is fairly clear, legally.

Palin's "target" poster identified "targets" and showed rifle sights' cross-hairs targeting Giffords' and others' home states. Kelly's ad said, "Help remove Gabrielle Giffords from office. Shoot a fully automatic M16."

A hypothetical Muslim's site says, "Kill the infidels."

Is there a difference, under law? Is either responsible for others' actions?

Originally posted by soficrow
I agree, absolutely. But you are talking about "modifying" the Constitution to include preventive and "anticipatory" legislation - which is what Canada has, I believe. (Rights with qualifications. :dn

I'm no expert on the Canadian Charter of Rights and Freedoms,

laws.justice.gc.ca...-ga:l_I-gb:s_2

but I believe that the American Constitution is a more fundamental document, philosophically speaking, i.e., that it reaches down to the bedrock of what a human being should expect on this planet in a social contract.

The Canadian charter implies the pre-existence of the "bedrock" of an established federal government and supplies a social contract for interaction with that government. Canadians have no established right to bear arms.

The criminal "community", of course, is completely unfazed by this and acknowledges no limits of any sort on what it can and cannot do.

Originally posted by soficrow
Does accountability necessarily trod on the right to speak freely?

At the heart of my concern, it depends how broadly you define the culpable speech.

Originally posted by soficrow
I am talking about leaving our Rights and Freedoms and the whole Constitution intact, but demanding a kind of legal accountability. Ie., if you tell someone to go out and shoot someone else, then you are accountable.

Presently, in the US, such 'legal' accountability already exists in two ways: civilly and criminally.

On the criminal front we have:

Brandenburg v. Ohio

Brandenburg v. Ohio, 395 U.S. 444 (1969), was a United States Supreme Court case based on the First Amendment to the U.S. Constitution. It held that government cannot punish inflammatory speech unless it is directed to inciting and likely to incite imminent lawless action. In particular, it overruled Ohio's criminal syndicalism statute, because that statute broadly prohibited the mere advocacy of violence.

The decision

The U.S. Supreme Court reversed Brandenburg's conviction, holding that government cannot constitutionally punish abstract advocacy of force or law violation. The unanimous majority opinion was per curiam (issued from the Court as an institution rather than as authored and signed by an individual justice).

...

[It] articulated a new test — the "imminent lawless action" test — for judging so-called seditious speech under the First Amendment:

“ …Whitney has been thoroughly discredited by later decisions. See Dennis v. United States, 341 U.S. 494, at 507 (1951). These later decisions have fashioned the principle 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 and is likely to incite or produce such action. ”

The three distinct elements of this test (intent, imminence, and likelihood) have distinct precedential lineages. Judge Learned Hand was possibly the first judge to advocate the intent standard, in Masses Publishing Co. v. Patten, 244 F. 535 (S.D.N.Y. 1917), reasoning that "f one stops short of urging upon others that it is their duty or their interest to resist the law, it seems to me one should not be held to have attempted to cause its violation." The Brandenburg intent standard is more speech-protective than Hand's formulation, which contained no temporal element.

There is also civil accountability, which could be brought by the families of the victims for wrongful harm or death on the basis of common law incitement. But again, similar elements and a showing of sufficient proximate cause would need to be accomplished.

But if you look at this thread and elsewhere within these boards, people are advocating a much looser (read more dangerous) standard. One I cannot agree with...

Originally posted by soficrow
"Where is the line drawn on "indirect" culpable statements or art?" ...It's not relevant. My question referred to direct and indirect consequences, not 'indirect' statements or art.

I was referring to the same. Perhaps my wording did not make that clear.

Originally posted by soficrow
The line between "clear direction" and "ambiguous implication" is fairly clear, legally.

Well, only to the extent as I have explained above. It seems folks around here are looking for something altogether different in my opinion.

Originally posted by soficrow
Palin's "target" poster identified "targets" and showed rifle sights' cross-hairs targeting Giffords' and others' home states. Kelly's ad said, "Help remove Gabrielle Giffords from office. Shoot a fully automatic M16."

A hypothetical Muslim's site says, "Kill the infidels."

Is there a difference, under law? Is either responsible for others' actions?

Well, I suppose reasonable minds can differ, but I would say each of those examples fail the "imminent lawless action" test.

Again, let me be clear. I do not favor such distasteful political rhetoric. But I will support it's protection under the Constitution.

But let me also make another point. A social responsibility one...

Is the mischaracterization of what a politician says as potentially damaging as the precise thing asserted?

Let me walk you through that.

I have seen already in several places the specific allegation that Sarah Palin expressly called for the assassination of political opponents. No one can show this, but it doesn't stop poeple from asserting it. So what happens if another nutter decides to "solve the Palin problem" on the basis of these exaggerated claims? Aren't people who make these exaggerated claims just as responsible for the very thing they are criticizing her for? Food for thought, I should think.

edit on 10-1-2011 by loam because: (no reason given)