Race To The Bottom

A reader emailed me a link today, and asked: “Ought the government prosecute?”

The story in question is a distasteful one: apparently somebody set up a poll on Facebook that asked the question “Should Obama be killed?

According to the linked item, there were three options: “Yes“, “No“, and “Maybe, if he cuts my health care“.

This is, of course, reprehensible and utterly unfunny — and probably very stupid, as I imagine the Secret Service will be making things mighty hot for the idiot who thought this would be nothing more than an amusing prank. They take threats against the President very, very seriously, as they should. The political and racial climate is terribly tense at the moment, and the Secret Service are surely on edge.

So: ought the government prosecute? The answer to that depends on another question: is what this jackass did illegal? I don’t know the answer to that, but I have a feeling it might be, or at least close enough to give it a go. With my blessing. He certainly didn’t do the loyal opposition any favors.

Have we lost all decency?

No need to answer, it’s a silly question.

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  1. Its a shame of what this country have come to god bless us all and may the lord protect us..

    Posted September 28, 2009 at 10:46 pm | Permalink
  2. the one eyed man says

    After giving it some thought, I came to the reluctant conclusion that there is nothing in the survey on Facebook which should be prosecuted. As odious as it is, I think it is properly subject to First Amendment protection.

    You can’t yell fire in a crowded movie theater, and you can’t publish troop movements. There was a recent case where someone went to public records and then posted the home addresses of members of the California Highway Patrol on the Internet. No problem with criminalizing any of these things, as in each case it is speech with the clear intent to cause harm.

    However, I think that there is a legitimate distinction when it’s a public figure. There is considerably more latitude given to First Amendment rights when public figures are involved: for example, it is nearly impossible for a public figure to win a libel judgment. The underlying premise is that someone who enters public life, intentionally or not, can legitimately be described in unflattering or insulting ways, and that free speech protections are far broader than civility.

    Many years ago, National Lampoon had a contest where the person who could most accurately predict the day Mamie Eisenhower died would win a free subscription (“Forgotten but not gone”). Clearly, that’s satire, and it’s hard to imagine someone offing Mamie to get the free magazines. However, from a legal perspective, I don’t know how you draw the distinction between National Lampoon and Facebook. To be sure, the Facebook survey is far uglier, and given all of the vitriol directed at Obama from the extreme right, you could make the case that the survey creates an atmosphere where someone could try to assassinate him, but I’m not comfortable with banning speech because it might cause a deranged person to act in a certain way. There is no way to rigorously define what speech is actionable and what is simply offensive, as the Mamie Eisenhower contest could be to some.

    I think it comes down to whether you think that the Facebook survey constitutes a direct threat. I don’t. I don’t see a straight line between the Facebook survey and someone actually loading a shotgun, as would be the case between yelling fire and people getting trampled. If, instead of a survey, you had a Facebook page which said “Kill Obama:” that’s a little trickier. However, I don’t think this case should be actionable. Speech is protected even when it is outrageous, vile, and disgusting, and that’s as it ought to be. Banning speech and prosecuting the speaker are things which should only be done in the most exceptional circumstances. I don’t think this situation fits the bill.

    I would be interested to hear what Jesse Kaplan thinks of all this.

    Posted September 28, 2009 at 11:39 pm | Permalink
  3. Malcolm says

    Thanks for that, Peter. It’s an “edge case”, and a difficult one, but after reading your comment I think many will agree with you.

    The law is probably open to interpretation here, though, and I am certainly not going to feel particularly sorry for this person if he has managed to run afoul of it. I don’t think this particular situation — calling for the assassination of the President — presents a particularly slippery slope.

    I agree also that it would be interesting to hear what Jess has to say; perhaps he’ll weigh in.

    Posted September 28, 2009 at 11:48 pm | Permalink
  4. Chris R says

    Prosecute? maybe not. But they should definitely look into this person and make their life a living hell. At least for a while.

    The secret service is kind of above the law.

    Posted September 29, 2009 at 2:46 pm | Permalink