First Principles

I keep thinking about Christina Green, the 9 year old girl who was murdered in Tuscon this weekend.

I think about how many political events I’ve been to, and how many times my family has been with me.  I think about my own little girl.  I think of the many drawers full of felony cases that sit in my file cabinet at work, crimes, some violent, often committed against people whose only sin was to be in the wrong place at the wrong time. I think about how those people know my name, how some have a lot of mental issues, and how they aren’t always happy that I couldn’t wave a magic wand and get their cases dismissed.

The attack on Representative Giffords and everyone else at that rally were horrifying.  But to me, they weren’t necessarily worse than other murders and attacks all over the world, from IED attacks to Islamic “Honor Killings” to decapitations in Mexico.  Closer, and more apparent, certainly.  But it’s Christina Green that makes it personal to me, that turns my stomach in knots over it.  I don’t know if my prayers are worth much.  But these people are in my thoughts, especially Christina’s daddy.

I’m glad they caught the shooter alive.  Either he’s truly, criminally insane and will never leave a padded cell, or he’ll be staring at a Writ of Execution or life in prison.  Either way, I’m glad he didn’t escape justice and will be out of circulation of the civilization he so despises.  But it’s an empty justice because the good people he left dead or wounded will leave the world a poorer place.

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This is a human tragedy, not a political one.  But there are plenty of people who, as the man said, don’t want to let a good crisis go to waste – and that’s turned it necessarily and unfortunately into a political issue.  In spite of no evidence whatsoever to base their accusations on (and in fact much evidence to the contrary), leftists of all stripes and in all places, from Facebook to press conferences, immediately accused their political rivals of being willing accomplices to murder.  (They saw no irony in doing so while simultaneously calling for “civility” in discourse, or hypocrisy in failing to mention the double standard they’ve enjoyed for years in this regard.)

Sharp, heated rhetoric and martial metaphors have been part of out political discourse since before the founding of the Republic.  The word “campaign” itself was a military term long before it was a political one.  The use of such rhetoric is no more a legitimate or rational reason to hate Sarah Palin than refusing to believe she actually gave birth to her youngest son.

I like to think that it’s a knee-jerk reaction and an attempt to find rationality where none exists, born out of the irrationality of grief.  Because the alternative is that they are evil, cynical scumbags who don’t mind falsely smearing millions of innocent people in a last ditch effort to cling on to the political power they’ve done such a poor job wielding to date.

Some great articles have been written on this.  But as disgusted as I am by this, I’m glad they’re saying it.  Good.  Speak out, and watch it blow up in your faces.  Let every man, woman, and child in America know that they’re the kind of people who will pick up the body of a nine-year-old girl and try to get a few more votes by brandishing her at their political opponents.  Let’s get it all out in the open – let’s tell America exactly who you are, you ghouls.

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Of course, for this reason and many others, these aren’t the kind of people who like free speech.  And that’s the real fear I have.  That this tragedy in Arizona will lead to an even greater evil – the loss of our liberties.

The left ought to be more sensitive to this, given how apoplectic they were over the Patriot Act (some of which I agreed with, some of which I didn’t).  50 times more people were murdered on 9/11 than in Tuscan, including 8 kids under the age of 11.  And yet how many times did we hear that updating our ability to get intel on terrorists before they struck would mean that “the terrorists would win,” and that we would just need to learn to “absorb” a 9-11 from time to time?  Well, before November 2008 that is…

There is some truth to this, I admit – perfect safety from any threat requires a total abrogation of liberty, and safety within a guilded cage is no life worth living at all.  While I favor an aggressive posture against such threats abroad, and forward-thinking police work at home, the only way to do this effectively is to discern patterns based on predictable and rational (or at least coherent) motives on the part of the people who would harm us.  And it can never be done perfectly.

That leaves the unpredictable and irrational.  The insane.  The people whose mental health deteriorates and no longer restricts them to thought processes which would make them think, “Hmmm….  Maybe poor grammar, the starlet, the J.D. Salinger book, or whatever else shouldn’t make me fire indiscriminately into a crowd of people at a public event. ”

People like Jared Laughner.

The reality is that in most cases, this just isn’t something you can predict or prevent short of every member of society living in their own bulletproof bubbles.  We can’t just round people up who are weird, and detecting a “true threat” is hard.  There are no easy answers to dealing with the mentally ill, especially those who commit crimes.  And there is no way whatsoever of eliminating such a threat, not with all the funding for mental hospitals in the world.  Believe me, I see it almost every day when I go to work.

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That won’t stop people from trying to “solve” the problem, though, unintended consequences be damned – in fact they’re already at it.  And whether it’s misguided good intention or a cynical ploy to cut off a debate these clowns continue to lose, the result would be the same.

Today, there have been no less than three suggestions by government officials on how to “fix” this legislatively:

Representative James Clyburn (D-SC) declared that reading the Constitution is hate speech which was by itself partly responsible for the shooting, and that the FCC should regulate political speech via the Fairness Doctrine once again.  Who would decide what was “balanced” is unknown – Death-of-Free-Speech Panels?  Ironically enough, it was Rep. Giffords herself who read the First Amendment on the floor of the House – is Clyburn saying she got what she deserved now?  What a pig.

Another Democrat, Louise Slaughter of New York, thinks that the FCC should just step in directly to “sanction broadcasts that could incite people to violence.”  (She also admitted she wasn’t up on FCC regs, and by extension, she admitted she wasn’t too keen on that Bill of Rights thing, either.)

And then there is the proposed bill which “would make it a federal crime to use language or symbols that could be perceived as threatening or inciting violence against a federal official or member of Congress.”  Not merely inciting, mind you.  It just had to be perceived that way by someone.  But not to worry – I’m sure such a law could never be abused in such a way as to stifle legitimate political dissent.

And it’s only been one business day since the shooting took place.

A good example of historic vitriolic right-wing rhetoric, which actually had the effect of inciting people to violence.

I have to note that our Democratic Representative from Vegas has said she wouldn’t support any attempts to restrict speech as a result of this.  Good.

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Let’s have a little First Amendment review of just what “incitement” means, because that word has been thrown around recklessly a LOT lately.  The main case on this issue is Brandenburg v. Ohio, which rejected an old “clear and present danger” rule and laid out the test for when rabble-rousing turns into unprotected incitement.

Brandenburg requires that before such speech can be regulated, it must be directed towards advocating or inciting imminent unlawful action, AND be likely to actually produce such action.

Imminent is imminent – several weeks later doesn’t count.  Saying you’d like to see the President in your rifle’s sights if you got drafted won’t do it.

The Supreme Court has long understood that whatever temporary safety might be claimed in silencing caustic speech is worthless compared to the wider dangers.  In 1927, Justice Brandeis wrote:

Those who won our independence believed . . . that public discussion is a political duty, and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law — the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.

That case was later overruled by Brandenburg, which expand First Amendment protections.  But Brandeis was quoted in the more recent New York Times v. Sullivan, which correctly noted:

[D]ebate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.

It’s hard to have that uninhibited debate when government officials threaten to regulate you based not just on what you say, but on what each and every crazy nutter might be influenced by.  But then for some, inhibiting political debate is a feature rather than a bug.

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So just to be clear – the next time you hear someone pondering in all seriousness whether political rhetoric “incited” this crime, they’re either a liar or a fool.  Unless Sarah Palin (or Markos Moulitasis) was standing next to Laughner saying, “Do it!” that day in Tuscan, they haven’t incited anything.

The only harm “vitriolic right wing rhetoric” has caused anyone is unemployment for several dozen Democratic lawmakers.  It’s a similar “harm” to the one caused Republicans by “vitriolic left wing rhetoric” in ’06 and ’08.

The ability to cause that kind of “harm” to politicians is exactly what makes our society free.  I’m sure official crime rates in Cuba are plenty low, and political speech in North Korea scrupulously civil.  But I’m not clamoring to trade with those folks any time soon.

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It’s not just free speech, of course.  Moving right through the Bill of Rights, the attacks on the Second Amendment have already begun.  And now we have Hillary Clinton comparing this guy to organized violent Jihad in the Middle East, which means either our Secretary of State is REALLY ignorant about militant Islam and the various organizations and state sponsors of Islamic violence, or she thinks we should declare martial law and surge troops anywhere there might be a paranoid schizophrenic with an internet connection.  He also smoked a lot of weed – should we push the limits of “reasonable searches” even more and step up the drug war even further for fear that marijuana actually causes psychopathic murder sprees?

Give me a break.

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This exploitation could have other more local consequences, too.  The Sheriff responsible for the investigation of this case has made it his mission to pontificate and speculate as to Laughner’s motive.  He does so without evidence, and he does it far and wide.  He accuses others by name of being accomplices, again, without evidence of any kind, and indeed with evidence to the contrary.

Here’s the problem – intent is a question of fact for a jury, a jury which will be pulled from the area he represents.  You’d better believe Laughner’s attorney will make hay about a deliberately tainted jury pool at this point.  Could that make it harder to convict this monster?  I think ultimately the evidence is overwhelming, and if competent, Laughner will be convicted.  But why make it any harder?  Why risk any problems?  Why create potential legal error where none need exist?  At the very least, he’s just ensured that many more rounds through the appellate process before the victims can have some measure of peace.

Besides – what does it say that a senior law enforcement official feels perfectly comfortable making broad, sweeping, partisan statements completely unsupported by any fact whatsoever about an ongoing criminal investigation?  How does he handle cases that don’t have a spotlight on them?

Scary stuff.  Bad and/or incompetent cops don’t just get innocent people convicted, they also help keep guilty people on the streets.

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All people find their true measure when faced with crisis.  And crises don’t seem to travel alone – they seem to move in herds.  Sometimes that’s because it’s how things are, but just as often, it’s because people who don’t have your best interests at heart take advantage of the fact that you’re in a crisis in the first place.

How we react to this horrific crime will help define us.  It would be a shameful tribute to Christina Green if we destroyed our freedoms in her name.  It would be a bitter irony if the Congresswoman who joined her political rivals as fellow Americans in celebrating our Constitution by reading the First Amendment on the floor of the House became the excuse to gut our right to free speech.