Criminal Responsibility for Inflammatory Rhetoric?

Many thanks to Dave Hoffman for inviting me to guest blog, and please accept my apologies, folks, for being so slow with my first post. As one of my colleagues would say, I’ve had squirrel brain for the past week.

The MSM talking heads have been chattering a great deal this week about the McCain Campaign’s go-for-broke strategy of depicting Senator Obama as the BFF of terrorists and anti-American extremists. GOP rally goers have been receptive to these tactics, responding with cries of “terrorist!” and “treason!” and “kill him!” at this week’s McCain-Palin pep rallies.

The stated endgame seems on the up-and-up: Senator McCain says that he is skeptical of Obama’s ability to tell the truth and that Obama is not being forthright about his affiliations with slithy toves like William Ayers and Jeremiah Wright. Governor Palin says that she questions his judgment because of these relationships. A candidate’s propensity for truthfulness and judgment ought to be fair game in a political war.

But that’s not what has the media (and me) atwitter.

I’m more interested in the unstated goals of this strategy. In particular, I’m curious about the campaign’s desire to paint Obama not only as a tractor beam of evil, but also as the embodiment of evil. A couple of McCain’s surrogates have even invoked Obama’s middle name in what can only be an attempt to portray Obama as a terrorist himself. Sure, negative portrayals of the other party’s candidates are standard fare when it comes to election season hijinks, but this particular round of character assassination has a discordant sound to it – like the soundtrack for “There Will Be Blood.” The McCain camp seems to be peddling fear, hate, and outrage to an audience that appears highly susceptible to this message.

What if, after drinking the Kool-Aid of campaign rhetoric, a rabid supporter sought to perpetrate harm on another candidate? Should the fear-mongering candidate (or a campaign strategist or surrogate) bear any responsibility for the bad acts of a fanatical groupie?

Under the Model Penal Code, one can be liable as an accomplice for another’s bad acts if the prohibited result was her conscious object. This standard might be hard to satisfy in my imagined scenario, but some criminal statutes are broader and could allow liability to attach based on one’s knowledge that, to a practical certainty, one’s conduct will assist in bringing about the prohibited result. Because knowledge is a less culpable mental state than purpose, however, courts might require something in addition to the knowledge – something like a stake in the venture. Would an election victory suffice as a stake? On the other hand, if the accused knows that, as a result of her conduct, the prohibited result is practically certain to occur, the serious nature of the intended crime should, arguably, be enough. No extra something should be required.

Hopefully, no persons or other animals will be harmed in the making of the next President. But, by creating an atmosphere that fosters violent and dangerous sentiments, the McCain campaign has increased the risk of injury to its opponents. For this reason, might McCain and Palin have more than an ethical responsibility to address and defuse these attitudes? Could they have a legal duty to engage in some straight talk with their supporters – to dial back the inflammatory rhetoric and to denounce publically these sentiments?

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13 Responses

  1. I’m hoping this is satire in a “modest proposal” sort of way.

    What you’re suggesting here is that criticism of Obama for his repeated lies about Ayers, association with ACORN including funding them to the tune of $800,000, and poor record of minimal accomplishments ought to be criminalized if anyone seems likely to be incited to cause harm.

    What about Obama’s exhortations to his people to “get in [opponents] faces” and the like.

    Or is McCain subject to this and Obama exempt because some people have claimed that association with a white urban terrorist is “racist”?

    This could do with a rethink.

  2. Jim says:

    You state that McCain and Palin have “creat[ed] an atmosphere that fosters violent and dangerous sentiments” against Obama. Query whether anyone on the left has ever publicly created such an environment vis a vis George W. Bush. There’s no need for the double standard here. That’s the problem with the Left here.

    McCain and Palin are not trying to incite violence nor are they trying to paint Obama a terrorist (in fact, they are painstakingly trying to avoid that comparison). They call Obama a “liar.” A clear word with its own marketing potential.

  3. Burr Deming says:

    Criminality is not typically assigned to even the most inflamatory political rhetoric.

    Before we make a choice we may regret for the next four years, the accusations against Barack Obama should be carefully considered, as they are here.

  4. wm. tyroler says:

    I’ve had squirrel brain for the past week

    Is that a reference to diet or to mental state? I’d bet on the latter, reserving the possibility it was caused by the former. No matter: it’s a genuinely nutty post (a natural result of “squirrel brain”?).

  5. Anon says:

    Jim’s attempt to paint an equivalence between left and right here is laughable. By and large, the left criticizes Bush policies–it does not try to link him to terrorists, or to insinuate that he has some sort of Islamic terror ties.

    wm. tyroler is an exemplar of the very reason this post is not nutty—like McCAiniacs and that oh-so-qualified sarah palin, he just starts name-calling when he can’t think of an argument.

    The far right needs to get a grip and start thinking about how to solve the financial crisis its failed policies stoked. The bizarre comments above just prove the point of the post.

  6. Jason says:

    My reading of the original post is that the issue is whether criminal liability could result if someone were to be harmed as a result of a campaign encouraging the kind of mob mentality that has been developing at McCain/Palin rallies lately. Before even McCain became uncomfortable with it yesterday and interceded when that woman from Minnesota said that she didn’t trust Obama because he was an Arab, comments like “traitor” “off with his head” and “kill him” were becoming common at McCain/Palin pep rallies. The question, as I understand it, is if the campaign continues to feed the mob the red meat of FUD about Obama and his alleged links to terrorists, and someone in the Obama campaign were to be harmed as a direct or even indirect result, does the Model Penal Code or the common law support a theory of criminal liability for McCain, Palin, or others in the McCain campaign?

    Although this has nothing to do with the issue that the original poster is asking us to consider, there is no doubt that Rs and Ds have both learned the game of dirty politics well over the past thirty years or so. However, the Rs have excelled at it. McCain himself was the victim of such tactics in 2000 when it was suggested that he had fathered an illegitimate black child and his patriotism (of all things) was questioned prior to the SC primary. To the best of my knowledge, no one at an Obama rally has suggested that McCain or Palin are terrorists, traitors or that they should be harmed in any way and if such nonsense was suggested I would hope (and I have no doubt) that Obama and/or Biden would stop to correct it immediately. Although McCain finally spoke up, and was clearly uncomfortable at a rally earlier in the week when someome yelled out “kill him,” it took him a week to do so.

  7. wm. tyroler says:

    he just starts name-calling when he can’t think of an argument

    You mean like, “laughable”; “get a grip”; “bizarre”? I’d say there’s a bit of projection at work.

    Anon seems to be comfortable with the suggestion that criticizing Obama’s close, long-lasting associations with some very odious characters risks criminal punishment. As constitutional doctrine, it’s a nutty idea; as policy prescription, it’s more than a little dangerous. But if nothing else, the post provides valuable insight into how far an Obama administration — abetted by an adoring academy and supine media — might try to go to squash dissent.

  8. Socrates says:

    Let’s help the ladies along please:

    Some items requested of Hussein:

    1. Occidental College records — Not released

    2. Columbia College records — Not released

    3. Columbia Thesis paper — Not available

    4. Harvard College records — Not released

    5. Selective Service Registration — Not released

    6. Medical records — Not released

    7. Illinois State Senate schedule — Not available

    8. Your Illinois State Senate records — Not available

    9. Law practice client list — Not released

    10. Certified Copy of original Birth certificate — Not released

    11. Embossed, signed paper Certification of Live Birth — Not released

    12. Record of your baptism — Not available

    I would also like for the McCain camp to also point out other glaring facts ignored by the campaign for change:

    George Bush has been in office for 7 1/2 years. The first six the economy was fine.

    A little over one year ago:

    1) Consumer confidence stood at a 2 1/2 year high;

    2) Regular gasoline sold for $2.19 a gallon;

    3) The unemployment rate was 4..5%.

    4) The DOW JONES hit a record high — 14,000+

    5) American’s were buying new cars, taking cruises and vacations overseas, living large!

    But American’s wanted ‘CHANGE’! So, in 2006 they voted in a Democratic Congress & yep — we got ‘CHANGE’ all right!

    1) Consumer confidence has plummeted;

    2) Gasoline is now around $4 a gallon;

    3) Unemployment is up to 5% (a 10% increase);

    4) Americans have seen their home equity drop by $12 trillion dollars & prices are still dropping;

    5) 1% of American homes are in foreclosure.



    Now the Democrats’ candidate for president — and the polls say he’s gonna be ‘the man’ — claims he’s gonna really give us change!

    So few racists, so many white people.

  9. Meighan says:

    Socrates.. haven’t you proven the original poster’s point by referring to Senator Obama by the name Hussein?

  10. Meighan says:

    Socrates.. haven’t you proven the original poster’s point by referring to Senator Obama by the name Hussein?

  11. geokstr says:


    What a crock.

    Unsupported assertions and smears about what really happened at Palin rallies. You either get your “facts” from Kos or their paper version, the NY Times. I’ve seen the newscasts of the Palin/McCain rallies, even on the 90% of the media in the tank for The One, and have yet to see anything that could be characterized as “inciting to violence”, or “hateful” or even anything remotely like it.

    Palin or an opening speaker mentions Obama palling around with Ayers, the crowd boos, one person in a crowd of 15,000 supposedly yells something they shouldn’t have, and the left goes absolutely BONKERS. That one supposed “Kill him” remark is claimed by ONE reporter, even he says it was about Ayers, and was in a speech 25 minutes before Palin even got there. Other than that, all I’ve heard about is booing.

    The Secret Service investigated and found no one, nada, zip, zilch, zero to back up that claim. They take their jobs very seriously, and yet no one is in custody for threatening anyone.

    Within minutes, this one unsupported claim is transformed into a “Kill him” directed at Obama, and chanted in unison by the zombie-like mobs deliberately and malignantly incited by Palin herself, and all over Kos, DU, HuffPo and then picked up as gospel by the major media, who are then cited in “hate” columns by the leftist pundits.

    What bullsh*t.

    Then you lie about the left’s oh so civil tone about those on the right.

    Bush, McCain and Palin have all been called Hitler. Bush and Palin, stupid. A black congressman calls Palin retarded. Because McCain was shot down over Viet Nam, he’s been called a lousy fighter pilot, and a traitor for breaking under intense torture for 5+ years. Bush has been called every name in the book, including baby-killer, genocidal, mass murderer, and every thing else possible. Palin’s kids are trashed, and her husband accused of incest.

    This is a tiny sample of the slathering, frothing slime that pours out of the left’s mouth and pens while you call us criminals for saying Obama pals around with domestic terrorists?

    You and your Comrades have learned Alinsky’s smear tactics well, you hypocritical creep.

  12. Ddad99 says:

    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

    NO LAW.

    Not some law, not a little law, not kinda sorta law.

    NO LAW.


  13. Cobalt Shiva says:

    Remember when y’all said that “dissent is patriotic?”

    I guess you really meant “dissent is patriotic, but only if you agree with me.”

    If this is the sort of legal “reasoning” that those who support Obama (PBUH) routinely engages in, then I will no doubt be considered a traitor for dissenting.


    “If this be treason, then let us make the most of it.” — Patrick Henry