Attorney: Palin Must Be Investigated For Incitement

[SunsetDreams]

(posted in another thread by nashadvocate, who probably can't post a thread, due to post count)
Thank you Nashadvocate, I hope you don't mind my posting this, I feel it is important to get it out there.

.

If Palin's speeches over the past few days have seemed odd to you--have seemed, perhaps, like no other political speeches you've ever seen, not in this presidential election cycle or any other--it's likely because they're not. Calling your opponent a jerk or an imbecile is nothing new; telling a crowd of thousands in a public space that a public figure consorts with and gives comfort to "domestic terrorists", in an effort to enflame the passions of the crowd, is something else altogether.

And isn't, at least not clearly, legal.

At recent Palin events, members of the crowd have begun shouting epithets at the stage (regarding Obama) during Palin's most inflammatory remarks. First, it was a man screaming "Terrorist!" at the mention of Obama's name, following a description of the Senator's alleged "connections" with 60s radical William Ayers. Then, it was another man screaming "Treason!" as Palin rhetorically asked the crowd what we should think about a public figure who consorts with "domestic terrorists."

more here: http://sethabramson.blogspot.com/2008/10/opinion-following-death-threat-against.html

[elocs]

1. While it is true that she must be investigated, we all know she won't be investigated.

Such is life in the real world.

[SDJay]

15. Unfortunately, you're totally right.

If Obama had been saying these things and generating this sort of crowd reaction, he'd already be locked up as a 'terrorist,' but Churchy Spice/Mrs. Secessionist, with ACTUAL ties to terrorists gets to continue to spew.

I can't wait until balance is restored and hate from white people 'in the name of Jesus' is given the same scrutiny as everything else. Fucking inbreds.

[Cha]

26. Not necessarily so... palin keeps up this shit and

she will investigated and she'll be watched. Not what you want when you're being investigated in your home state simultaneously.

[BR_Parkway]

33. Disagree. First Lady Michelle isn't likely to let some of this stip by

she understands the threat to our nation (and our next POTUS) from within if this sort of thing goes unchecked....

[elocs]

35. Exactly how may Michelle Obama "investigate" Palin?

Let's be realistic and pragmatic about this: no matter how repulsive this is to us, Palin will not be "officially" "investigated" by anyone. It's not going to happen.

[nashadvocate]

2. Thanks, SunsetDreams. I can't post threads yet.

Best,
S.

[SunsetDreams]

4. Your very welcome :)

Thank you for bringing this to light, this is very important, and it needs to be spread far and wide.

[brer cat]

24. Excellent post

and welcome to DU, Sunset Dreams!

:hi:

[justiceischeap]

3. Let us not forget the slander aspect of her words as well

She is committing slander against Obama by implying that he's "palling around with terrorists."

Of course, as I see it, the whole repug party are domestic terrorists, so...

[cui bono]

5. I sent MoveOn an email asking them to start up an action for this

and for media to stop covering the McCain campaign until they stop.

[SunsetDreams]

6. Thank you, action should be taken.

[nashadvocate]

8. Absolutely. Televising incitement is not much better than engaging in it.

S.

[CADEMOCRAT7]

Good move, thanks ! n/t

[Viking12]

7. Not incitement (yet)

See Brandenburg v. Ohio (1969)

[SunsetDreams]

9. correct, "yet" which is why

Action needs to be taken now, so that a warning shot is sent.

McCain and Palin need to be made aware, that should they continue this, knowing full well what the "return" was, ie...kill him....treason...etc from people in their audiences....then they are complicit.

[Viking12]

12. Why do you hate the First Amendment?

You're advocating for prior restraint. I find that extrmely objectionable. Just because the wing-nuts in charge want to shred the Constitution for political gain, doen't mean we shoudl support such measures.

[nashadvocate]

14. Hi...

...it's a question of line-drawing, not a binary question of whether one supports/endorses prior restraint or not. We all believe incitement should be illegal. It's just a question of how we process the facts of individual hypotheticals (or actual scenarios) under the Brandenburg Test. You feel what's happened, in the "totality of the circumstances," doesn't rise to the level of incitement under USSC case law. Others could, I think, in good faith disagree.
S.

[Viking12]

19. The line has been drawn...

In order to be convicted of incitement to illegal action, there actually has to be an actual illegal act committed. Until then, no can or should be charged w/ incitement. Unless, you have evidence that some act has occured that we're currently unaware of, you are advocating for prior restraint based on what "might" happen. That is not reasonable if you respect our rights.

[SunsetDreams]

23. Re: the line has been drawn

I'm inclined to believe when referring to the President of the United States....or a Presidential candidate....

the line must be drawn.

Should a person be able to go out and make a speech accusing...say a President(candidate), of being a terrorist, or "palling around with terrorists" and "incite" someone in the crowd or several someones' to yell "Kill Him" etc....? Then knowingly, go out and repeat same speech again.

Are you saying that a President should have to be assassinated or an attempt made for anything to be done?

To me that hardly makes sense when we are talking about a President or candidate.

[nashadvocate]

25. Okay, that is just incorrect...

...as a matter of both fact and law. Are you saying anti-conspiracy laws are prior restraint as well? In a conspiracy, there may be as little as a meeting of the minds and a single act in furtherance of the conspiracy, which act need not be itself illegal. The conspiracy need not be carried out for the agreement to be prohibited. In this instance, federal law will treat "Kill him!" as a criminal threat--because of the circumstances and the individual involved. That is why there is no prior restraint here. Are you misunderstanding this, or viewing "Kill him!" as in no way prohibited by federal law, and thus an illegal act which removes this from the realm of prior restraint? Perhaps the Secret Service will investigate and determine "Kill (Obama)!" shouted in a crowd of 10,000 anti-Obama supporters is in no way a crime, and perhaps they'd be right. But it will be investigated, and that determination will be made, and reasonable folks could differ on the outcome of that investigation, and thus investigating Palin for incitement is warranted.
S.

[Viking12]

29. "a single act in furtherance of the conspiracy"

..act goes beyond speech, there, doesn't it? Again, "conspiracy" and "incitement" are seperate categories of speech under the law. You're attempts to conflate them don't make them so. Remind me NOT to hire you as counsel if I'm ever charged with a crime.

[nashadvocate]

32. Okay...

...so when I use the term "federal crime" in a post, in conjunction with reference to shouting "Kill him!" at a public rally, how do you *not* interpret that as an "act"...? I'm mystified here. I can only assume we're talking right past each other.
S.

[Fire1]

36. Thank you, nashadvocate, well stated! Furthermore.......

due to the circumstances, this should not be treated as an idle threat, no more than yelling 'fire' in a crowded theatre!

[nashadvocate]

11. Actually...

...not sure I agree. The Brandenburg test of "intent, imminence, and likelihood" is not so far off from what we're seeing here. Intent is addressed in the article; continued speech identical to the speech which instigated Secret Service-investigated threats could cause a valid mens rea to arise. Imminence and likelihood will be determined by the Secret Service, but we certainly know--given the history of this campaign--that countless threats against Obama's life have in fact been made. Context may supply imminence and likelihood, and the first-ever black candidate for President of the United States goes some distance toward that. The proposed victim of the violence need not, under Brandenburg, be somehow "in sight" or "present"--I think that would misread what lawyers mean when they refer to "imminence" and "likelihood." It's a question of content and context, a standard the evidence is mounting to suggest McCain and Palin have met (especially since the threat of murder has just been repeated at a second rally, this time a McCain rally).
S.

From Brandenburg: "...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."

[Viking12]

13. Using your convoluted interpretation, most books could be banned for incitement

because something "might" happen. Jeebus people, let's not jump off the freakin' cliff here.

[nashadvocate]

18. The Secret Service doesn't get involved because of "might happen" scenarios, and so...

...this is well beyond the distant possibility you're describing. This is a situation where there have been a history of credible threats against this individual, currently the most high-profile citizen in the United States. One credible threat led to arrests and to the seizure of a stockpile of automatic weapons. The words at issue have now led more than once--contemporaneously, and on camera--to death threats the Secret Service will now investigate. How is that in any sense analagous to a book creating an only distantly-feasible situation?
S.

[Viking12]

21. you clearly don't understand the difference between incitement and making a threat

Two completely different categories of speech.

[nashadvocate]

22. Viking...

...I understand the difference. I've represented hundreds alleged to have criminally threatened others. While the "Kill him!" statement made by McCain-Palin supporters (twice) would not be a state-level offense, federal law is manifestly different from state law where presidential candidates are concerned, a fact both McCain and Palin are aware of but which you don't seem to credit or acknowledge.
S.

[CADEMOCRAT7]

10. This needs attention. What can DU do ?

Palin has crossed a line. More people need to stand up and say "no' ! We will not allow this to continue.

[nc4bo]

17. Yep, must be a way to organize some community activism to address this.

But figuring out who or what agency/organization should the action be directed to would be a good start I'd think.

[CADEMOCRAT7]

31. I agree. I am new to DU, and need direction on this. One idea.

Could we, members of DU sign a petition, and send it to Senator Ted Kennedy's office ? McCain keeps bringing up Senator Kennedy. We could ask Senator Kennedy to direct a letter to Senator McCain warning him that some of the recent responses from the crowd to Palin's speeches has crossed the line...that Palin needs to be more responsible about how she is inciting this type of behavior with her words and demeanor.

[The Magistrate]

16. The Gentleman Has Prepared An Excellent Brief, Ma'am

A very sound analysis.

What is going on at Republican rallies presently is extraordinarily dangerous.

[SunsetDreams]

27. I agree Magistrate

I was appalled and while not being an Attorney, I knew in my mind and heart somehow this should be and possibly is illegal.

They should not be able to get away with this, and to continue it today is beyond reprehensible.

Devils advocate here, lets say Palin and/or McCain honestly had not heard the shouts at the time they were made.

You can't convince me that they do not know about the Secret Service investigation into said shouts, or that they were not aware of the news reports in the media at this point.

For them to continue this despicable charge today, after it's been reported on and being investigated....IMO they are complicent.

[The Magistrate]

30. Exactly, Ma'am: If It Continues, A Case Can Certainly Be Made It Is Done In Criminal Mind

With the intent to move others to commit a crime.

[firedupdem]

20. Their rhetoric has reached a new low in politics. Usually you

challenge the opponents promises to the american people. Challenge that their promises as to what they will do in office will not work etc. After 911, calling people friends of terrorists and saying they don't see the country as a great place goes beyond anything I have ever heard of. Nobody is asking for special treatment here, but the things they are saying are specifically targeting a racist, nut case group of people that still exist in America. They should be ashamed of their actions. They have run a horrible campaign.

I hope something stops them. What they are doing to people in an already horrible economic climate is reprehensible.

[SunsetDreams]

28. I totally agree...

this is beyond reprehensible, and downright sickening.

[Rosa Luxemburg]

34. defamation per se?

[happydreams]

37. K&R! What gets me is that neither Palin or McShithead did anything

in the way of a response to this. They must have their feet held to the fire until they respond. They may say something like they didn't hear what was said, but then they should make a statement condemning this behavior.

[chill_wind]

38. With the SS inquiries and the media attention to the incidents, she can now no longer fly

under the radar.

"Should Palin continue her slanders against Obama it will shortly reach the point where mens rea can be implied, as she is aware her actions will have a specific, articulable effect on others of the nature described above (not merely once or twice, but a minimum of three times thus far).

Every public syllable she utters at these events from this point on should be scrutinized, but most of all, recorded.
These events need to be thoroughly infiltrated by citizens with that ability.

[onenote]

39. this attorney thinks that attorney doesn't know what he's talking about

Politically, Palin and McCain should be called out for their rhetoric and for not condemning the hate spewed by some in their audience. But legally, they are not liable for the speech of another person.

In the US, the crime of "incitement" to the extent it exists, is very narrow, thanks to some very smart and progressive justices of the Supreme Court, including William O. Douglas, Thurgood Marshall, William Brennan, Hugo Black etc, all of whom participated in the unanimous decision in Brandenburg v. Ohio in 1969, where the conviction of a KKK leader for "advocacy" of violence was overturned. The court made it clear that in order constitute a criminal act, speech must be directed to inciting or producing "imminent" lawless action and must be "likely" to incite or produce such action.

If there is a case for incitement here, and I'm not saying there is, it woudl be against the idiot who yelled "kill him" not against palin or mccain. But, again, they should be called out politically, but not legally.

[chill_wind]

40. And the huge irony

not lost on DU, but worth pointing out again (ie Glenn Greenwald today)


"Identically, the fact that Sarah Palin’s husband — for years — belonged to, and Palin herself praised and embraced, an explicitly anti-American political party whose leader swore his hatred for the U.S. Government — all the while she attacks Obama on a daily basis for supposedly “anti-American associations” — tells you all you need to know about her and our press corps for allowing her to get away with that."

http://www.salon.com/opinion/greenwald/

The Palins' un-American Activities

http://www.salon.com/opinion/feature/2008/10/07/palins_unamerican/

[polichick]

41. k&r