BOB GARFIELD: From WNYC in New York, this is On the Media. Brooke Gladstone is off, I'm Bob Garfield. If last week was mayhem--
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FEMALE CORRESPONDENT: At least 10 packages have been sent to people who are frequently singled out by criticism by the president.
MALE CORRESPONDENT: Another white man, history of violence, custody for shooting and killing two African-Americans in a grocery store, Krogers.
MALE CORRESPONDENT: But what he tried to do was barge into a predominantly black church and fail.
MALE CORRESPONDENT: It was around 10:00 Saturday morning a man walked into Pittsburgh's Tree of Life synagogue and started shooting. [END CLIP]
BOB GARFIELD: --this week was about the reckoning.
MALE CORRESPONDENT: Demonstrators believed the President's rhetoric incites acts of violence. [END CLIP]
BOB GARFIELD: There is a compelling argument for tracing a line between the hateful rhetoric of President Trump and his allies and the right wing media to attacks on the very groups and individuals they identify as threats to our society–the Clintons, the Obamas, the blacks, the immigrants, the Jews.
MALE CORRESPONDENT: The State Department and USAID is partnering with Soros and basically allowing Soros to set our foreign policy agenda.
PRESIDENT TRUMP: They're bringing drugs, they're bringing crime, they're rapists.
MALE CORRESPONDENT: And they're coming in with diseases such as smallpox and leprosy and TB that are going to affect our people in the United States. [END CLIP]
BOB GARFIELD: But that line of responsibility for violence is not a clear and continuous one. At most, it is a dotted one. The ugly speech, after all, describes enemies but, for the most part, it doesn't solicit violence. And the lone wolf perpetrators were by all accounts, kooks.
MALE CORRESPONDENT: Picture is emerging now of Sayoc. A troubled isolated man who was sometimes menacing towards women especially.
FEMALE CORRESPONDENT: Bowers filed a plea of not guilty during his arraignment in federal court this afternoon. And when he walked into the courtroom he had no emotion, appeared almost confident even cocky. [END CLIP]
BOB GARFIELD: Then there is the law. A large body of which including the First Amendment protects all manner of political speech. Most recently a federal appeals court upheld a Kentucky lower court ruling absolving candidate Trump of legal responsibility for protesters being roughed up at one of his campaign rallies after he had directed his supporters too.
PRESIDENT TRUMP: Get him out of here. Go out. Get out. [END CLIP]
BOB GARFIELD: Garrett Epps teaches law at the University of Baltimore. The lower court he says found that the events simply didn't match the Kentucky statute governing incitement because Trump didn't specifically tell anyone to harm the protesters. And then the appeals court had further thoughts.
GARRETT EPPS: But then they went even further to say, 'and anyway the First Amendment protects everything that Trump did.
BOB GARFIELD: And what would the candidate have had to say to the crowd for this dotted line of a remark followed by manhandling to be deemed an actual incitement.
GARRETT EPPS: If a candidate or speaker at an event like that pointed at a specific person and said, 'get him' or 'knock the blank out of him.' And the person was then assaulted, then were in the realm of incitement within the meaning of the First Amendment.
BOB GARFIELD: The standard of direct explicit plausible incitement has deep roots in US law and was crystallized in the 1969 case called Brandenburg vs. Ohio, about a hapless Ku Klux Klan demonstration.
GARRETT EPPS: They burned a cross and then Mr. Brandenburg made a, somewhat, incoherent speech about their opposition to black people in their opposition to Jews and so forth. And then he made these famous remarks that every First Amendment lawyer knows basically by heart. He said, 'we,' meaning the Klan, 'we are not a revengent organization, but if our president, our Congress, our Supreme Court continues to suppress the white Caucasian race, there might have to be some revengeance taken.' So he seemed to be threatening revengeance, bearing in mind that this was on private land, there was no crowd, there was no imminent violence because he was addressing a bunch of guys in sheets and a TV crew, none of whom was about to go do anything and there was nobody nearby for him to do anything to.
BOB GARFIELD: Brandenberg was arrested under an Ohio law against advocating for the overthrow of the government. The case eventually reached the US Supreme Court which ruled not so fast.
GARRETT EPPS: If you're going to be arresting people and charging them with inciting violence through their words then you're going to have to prove some pretty important elements. You're going to have to prove, beyond a reasonable doubt, that the person intended to and was likely to cause imminent violent action.
BOB GARFIELD: It's not that the court was losing sleep over the fate of robed bigots. But it was concerned about the wholesale arrests in the south of civil rights protesters whom it deemed vulnerable to similar charges. Speech–even raucous speech, even militant speech–had to be protected. Its foundational to American democracy. But here's the thing, the First Amendment was designed to protect individual citizens. In their dissent against government not to empower the government to smear its citizens. And never mind hate speech, up until now US presidents have avoided provocative statements on any subject. Presidential historian Michael Beschloss is the author most recently of Presidents at War.
MICHAEL BESCHLOSS: Almost every president in history has known that one liberty he gives up is liberty to say exactly what he thinks about everything under the sun. And one of the things that you often here president saying after they leave the presidency is how liberated they feel. George H.W. Bush used to say, 'you know, I'm free at last. Finally, I could say what I think.' That's not a luxury that a sitting president gets.
BOB GARFIELD: An incautious utterance, after all, can trigger a stock market panic, a diplomatic crisis, civil unrest. In 1990, President George H.W. Bush triggered a protest caravan of angry agri-businessmen to Washington for saying this.
GEORGE H.W. BUSH: I do not like broccoli and I haven't liked it since I was a little kid and my mother made me eat it. And I'm president of the United States and I'm not going to eat any more broccoli. [END CLIP]
BOB GARFIELD: The broccoli industrial complex is one thing, the stakes get a little higher. In 1984, Ronald Reagan made a joke on the campaign trail that he thought was off mic.
RONALD REAGAN: My Americans, I'm pleased to tell you today that I've signed legislation that will outlaw Russia forever. We begin bombing in five minutes. [END CLIP]
MICHAEL BESCHLOSS: People thought that that was a signal of what was really on Reagan's mind. And it was certainly used against Reagan politically.
BOB GARFIELD: So what to make of the discarded norm of presidential sobriety. Is that a new factor to weigh in the definition of incitement? And what about this factor: that line of responsibility that, to observers, is so inconclusively dotted. Made to the culprit be as solid as a direct command.
AMANDA ROBB: They are always egged on. I mean, terrorism never happens in a silo or a vacuum ever.
BOB GARFIELD: Amanda Robb is a journalist specializing in the acts of domestic terrorists. A grim fascination that began with the murder of her uncle a Buffalo, New York gynecologist who performed abortions. So-called pro-life activists had published leaflets with his face in the crosshairs of a rifle. Moving him to write a 1994 letter to his local paper The Buffalo News.
AMANDA ROBB: And in it he said, 'you know, don't be surprised when one of the more fragile minded members of your community, when one of your followers shoots an abortion provider.' And 20 years ago last week, he was shot and killed in his own kitchen, in front of his wife and children. I wrote a story a couple years back about Robert Dear who was the man he shot 12 people at a Planned Parenthood clinic in Colorado Springs, Colorado. And he was heavily influenced by doctored videos, allegedly, showing abortion providers selling baby body parts. That was the language that was being used and that was the language that was used in Congress. Marsha Blackburn, who is now running for Senate in Tennessee, started a whole subcommittee to investigate the selling of baby body parts. And that's what incited him. That's why he chose that spot.
BOB GARFIELD: Robb spoke to these men. She heard their righteous rationalizations tying directly back to what they had heard and read. Another was Edgar Maddison Welch, the North Carolina man who was moved by the pizzagate ravings of Alex Jones, to take weapons into a Washington DC pizzeria to liberate children from what he believed was a child sex slave ring operated by Hillary Clinton and fellow Democrats. Shots were fired.
AMANDA ROBB: It was definitely, to him, like straight from Alex Jones and that was more credible because General Flynn was retweeting and, I mean, he totally says that's where he got it. And he will tell you that.
BOB GARFIELD: As someone who has experienced this journalistically and personally, is there an overriding moral principle that says that, that we can connect the dots and that dotted line and assign blame to those who spew the hatred.
AMANDA ROBB: Oh absolutely. I mean people don't randomly choose enemies. They have to be pointed towards hate. And people are being very pointed.
BOB GARFIELD: American law, as we have seen, is not only ill-equipped to evaluate cause and effect but engineered to err on the side of more speech not less. The same cannot be said for elsewhere in the world. In Europe, where hateful scapegoating from politicians and right-wing media delivered an unthinkable holocaust, there are strict laws against incitement and hate speech. As Professor Epps observes.
GARRETT EPPS: Candidate Trump, if he were, for some reason, to run for president of France, would find himself in some serious criminal jeopardy, perhaps in Germany too.
BOB GARFIELD: Criminal jeopardy. Till now, in our inquiry on culpability we've weighed the sanctity of the First Amendment against the toll of impunity, compared the criminal laws of the United States and Europe and contrasted the standards of the law against the admitted intentions of the criminals. But for most of history and still today, secular law has had a parallel in moral law, mainly in the form of religious doctrine such as the Ten Commandments. The ninth of which declares 'thou shalt not bear false witness. Don't lie and especially don't make false accusations. Here is conservative radio host Dennis Prager.
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DENNIS PRAGER: The Hebrew Bible was so adamant on the subject, that the punishment imposed on a witness who gave false testimony was the same as the punishment that would have been meted out to the accused, had the false testimony been believed. [END CLIP]
BOB GARFIELD: Not to suggest that matters of culpability can or should be litigated by the clergy, just to say that in the drawing of lines, the world offers no consensus yet plenty of certainty on how to connect the dots. Coming up anti-Semitism, as Chris Rock says, 'that train’s never late.' This is On the Media.