President Obama stated at the memorial service:
We cannot and will not be passive in the face of such violence. We should be willing to challenge old assumptions in order to lessen the prospects of violence in the future.
Since Obama's 2008 campaign, we have witnessed the worsening of an extremist culture of hatred, anger and racism used as fear-mongering tools to further political agendas. This extremist culture has expressed itself in what many call vitriolic rhetoric using words, videos, and photographs.
One old assumption is labeling these extremist statements as political rhetoric, sending the message "don't worry about it" because this is politics as usual.
However, there is a body of law called "threat jurisprudence" that evaluates whether statements and conduct of this nature constitute political rhetoric or "true threats." We can use this law to challenge the old assumption to weed out true political rhetoric from the cesspool of true threats in order to actually lessen the prospects of violence in the future.
"True threat" jurisprudence is used to determine whether statements constitute a threat or political rhetoric because the First Amendment protects political rhetoric but does not protect threats. Courts need to determine whether statements constitute a true threat because some statutes prohibit threats -- such as statutes governing threats against the President, or law enforcement officers, or threats to doctors at abortion clinics. The rationale for this law is to protect individuals from the "fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur."
This true threat analysis is instructive with the Tucson shootings and the past few years of right-wing extremism not to make a legal case, but to illustrate that the visual, oral and text statements that we have witnessed over the past few years constitute threats and not simply political hyperbole or rhetoric. We need to recognize a distinction between threats and political rhetoric, and find ways to at least deter the continued use of threats as a political tool to determine policy and voting choices.
Planned Parenthood of the Columbia/Willamette Inc. v. American Coalition of Life Activists (2002) (a long opinion with overview of cases in true threat jurisprudence) is a case involving websites and WANTED posters that provided photos, names, and addresses of abortion providers that were targeted, similar to Palin's website. The case is instructive in terms of what key factors are used to determine whether statements constitute a true threat:
1. The statement does not have to contain a threat on its face in order to constitute a "true threat." For example, the infamous "WANTED" posters used by anti-abortion groups did "not contain a threat on their face." A "true threat" is defined as a statement for which a "reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm." I think a reasonable person would foresee that Palin's target map, reload tweets and identification of Gabrielle Giffords as a target would be interpreted as a serious expression of intent to harm Gabby even if by third parties given the context of the past few years of extremist threats to lawmakers and the knowledge that similar suggested threats have been linked to third parties taking or threatening to take harmful actions.
Lawmakers know that some of these so-called benign threats contributed or caused third persons to threaten to implement the suggested threat. For example, conservative Joyce Kaufman stated at Tea Party rally that "if ballots don't work, bullets will." An investigation found that a "countywide school alert" was implemented because her statement caused one person to threaten "something big around the government building" and another person to threaten to "go to a school and open fire with a gun." The question is not should we charge Palin with a crime, but should we call her statements threats.
2. Threat cases involve analysis of the "whole factual context" and "all of the circumstances." Symbols can be important to determine whether a statement constitutes a threat. Indeed, history can give meaning to a threat, particularly for objects or methods used as symbols to convey the threat. For example, an anti-abortionist who parked two Ryder trucks in the driveways of an abortion clinic constituted a true threat because "Ryder truck had been used in the Oklahoma City bombing of the Murrah Federal Building. Hart knew the clinicians knew this and would fear for their lives."
Palin's target map needs to be assessed in light of the full context of circumstances. In August 2009, when there were demonstrations against the health care measure across the nation, protesters showed up at events carrying guns. In January 2010, Sharron Angle raised the possibility of "Second Amendment remedies." There were many videos, posters and statements referencing the threat of guns if lawmakers did not defeat the health care bill. In March 2010, the FBI confirmed that a gas line was deliberately cut at the home of Representative Perriello's brother. It was speculated that a tea party website listed the brother's address by mistake when it encouraged tea party supporters to "drop by" and "express their thanks" for his health-care vote.
It was within this broader context that Palin launched a website to "Take Back the 20" on September 23, 2010. "Palin puts a bull's-eye on 20 House districts under a headline that reads, 'We've diagnosed the problem...Help us prescribe the solution.'" Palin's Democratic targets included Gabrielle Giffords and Virginia Rep. Tom Perriello.
Palin now claims the crosshairs were surveryor's marks, but what kind of surveyor tools require reloading? After health care bill passed, Palin tweeted ""Don't Retreat, Instead - RELOAD!"
3. The context is not limited to the statement made on a website or poster, but includes the factual consequences that might occur over months and even a year. The court evaluated the history and use of "wanted" and "unwanted" posters with doctors' names, photographs, addresses and other personal information that were published before doctors were killed in March 1993, August 1993 and July 1994 in order to determine if the current case involving a "Deadly Dozen poster" constituted a true threat. The "day after the Deadly Dozen poster was released, the FBI offered protection to doctors identified on it and advised them to wear bulletproof vests and take other security precautions, which they did."
It was important to the court that a "'wanted'-type poster would likely be interpreted as a serious threat of death or bodily harm by a doctor in the reproductive health services community who was identified on one, given the previous pattern of 'WANTED' posters identifying a specific physician followed by that physician's murder." That is, the prior pattern of WANTED posters published followed by the assassination of doctors was important to interpreting the meaning of similar posters in a different case to determine whether it constituted a threat.
Thus, when evaluating whether a particular statement constitutes a threat, it is reasonable to consider the overall climate of hatred, fear and racism exhibited in the statements, videos and pictures presented by others because a particular statement is not interpreted in isolation.
4. Patterns, symbols and code words are part of the factual context. In the abortion cases, the posters did not contain any language that was overtly threatening. Rather, it was the use of the wanted poster type format in the context of a prior pattern that similar posters were published and then followed by murder that constituted the threat. "The posters are a true threat because, like Ryder trucks or burning crosses, they connote something they do not literally say, yet both the actor and the recipient get the message." The same is true of posters where "lines were drawn through the names of doctors who provided abortion services and who had been killed or wounded."
Lawmakers themselves realize that the climate of hate includes threats. Rep. King (R-N.Y) proposed a gun ban perimeter around lawmakers to protect them. Two lawmakers now plan to "pack heat back home." Wonder how many lawmakers will seek to be deputized by the U.S. Marshals Service, like Sen. Orrin Hatch has been for some years, so that they can "carry a concealed handgun anywhere, including inside a federal building like the U.S. Capitol." Should we return to the days of the 1830s When Congress Was Armed And Dangerous? It is hard for lawmakers to argue that these statements are benign political rhetoric rather than cancerous climate of threats when they are concerned about their own safety.
Characterizing appropriate extremist statements as threats comports with the reality that some third parties have acted consistent with the suggested threats. It labels the conduct as inappropriate rather than politics as usual. If bloggers and the public call the statements threats, then it might provide some deterrence to the GOP to stop feeding the proliferation of threats by their silence or acceptance.
