Sunday, October 12, 2008

Are John McCain and Sarah Palin inciting a riot?

The answer, of course, is no. The case law here is Brandenburg v. Ohio, 395 U.S. 444 (1969), which concerned a KKK leader inciting hatred against blacks and those who would give equal rights to blacks. The so-called Brandenburg test would require that McCain or Palin urge that their audience perform a specific and imminent illegal action. Thus far they have stayed well away from urging their audiences to perform a specific and imminent illegal action (or any illegal act at all), and thus while their conduct in inciting hatred is reprehensible, as with the KKK leader above, their conduct is not illegal.

Brandenburg v. Ohio is what allowed McCain buddy G. Gordon Liddy to discuss the best way of killing BATF agents on his radio show (he suggests a head shot in order to bypass the body armor), allows Ann Coulter to discuss exterminating liberals except for a few to be kept in zoos, and other such reprehensible speech. But it also protects those who talk about demonstrating against the government or taking political action against the government too. I.e. you and me. So I guess this is one of those things we have to live with and can expect to be self-correcting over time. As, apparently, it already is -- the rowdy nature of the Palin/McCain speeches has become a national disgrace to the point where John McCain is getting alarmed and trying to put a stop to the worst of it, getting booed in the process. I guess his polling has told him that running a scorched earth Two Minute Hate at every campaign rally is scaring away voters he wants. Or maybe he simply dredged up what little honor he has left after what has been, this past month and a half, an unhonorable campaign, and has decided that if he is going to lose he might as well lose with more grace than a squalling toddler throwing a temper tantrum in the middle of a grocery store. We shall see...

-- Badtux the Free Speech Penguin

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