The Bizarre Thought Police

[Note: See important update/P.S. at end].

In an earlier post, I mused about the possibility of criminal responsibility for inflammatory campaign rhetoric, raising the issue as a thought experiment in much the same way that I would raise an issue in class. Predictably, the Thought Police quickly emerged to chastise me for committing crimethink – the unspeakable act of failing to address an issue in a manner pleasing to those speaking from the vantage point of an electronic soapbox. In particular, Thinkpol seems to champion the idea that the mere existence of the First Amendment invalidates the notion of criminal liability for political speech and to think otherwise is, well, “bizarre.”

I beg to differ.

Sure, courts in the United States have proven reluctant to impose liability for speech. But our courts have not said that liability may never be imposed. Could a court ever construe political speech as “advocacy … directed to inciting or producing imminent lawless action”? Could political rhetoric ever amount to “speech … brigaded with action”?

First Amendment rights are not absolute. Yet. And so, like Jell-o, there’s always room for argument. Mental manna keeps our brains sharp. In this case, hypothetical or otherwise, it might also keep our hands clean.

Fight the urge to crimestop. We don’t need no thought control.

Important P.S.: The tone of this post was intended to be defiantly tongue-in-cheek. In hindsight, however, I realize that someone as dedicated as Walter Olson to preserving our civil liberties might be affronted by my post. I have since spoken with Mr. Olson and assured him that I intended no harm. Hats off to Mr. Olson for his gracious response!

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16 Responses

  1. wm. tyroler says:

    I [raised] the issue as a thought experiment in much the same way that I would raise an issue in class.

    Quite the class. The original post asserted as fact that GOP rally goers have been receptive to [McCain’s “go-for-broke] tactics, responding with cries of “terrorist!” and “treason!” and “kill him!” at this week’s McCain-Palin pep rallies. The professor then pronounced herself “atwitter” at “the unstated goals of this strategy” which she then troubled herself to articulate as “peddling fear, hate, and outrage to an audience that appears highly susceptible to this message.” And then articulated the resulting legal question as whether the “McCain campaign” (McCain himself? Palin? some or another surrogate(s)?) might have some criminal accomplice liability. Liability for what result, exactly, she doesn’t quite get around to saying, except to express certainty that by creating an atmosphere that fosters violent and dangerous sentiments, “the McCain campaign has increased the risk of injury to its opponents.”

    All in all, a swell post, other than its heroic refusal to be burdened by either relevant facts or legal analysis. Now Walter Olson comes along and points out that, well, the facts aren’t quite as represented. The only real character assassination is that performed by the mainstream media on McCain-Palin (and, speaking of accomplice liability, credulous academics). And, as Olson further mentions, the post oddly never condescended to mention the 1st amendment, let alone free-speech considerations. This relatively mild rebuke which did little more than state the obvious — the post got the facts wrong, completely ignored pertinent legal analysis, and all but suggested that someone running for president might be held criminally liable for criticizing his opponent — is tantamount to chastisement by the Thought Police “for committing crimethink”?

    Let’s try a different thought experiment. The Obama-Biden strategy is to depict McCain as dangerously senile and erratic; and Plain as trailer-trash given to speaking in tongues; and both as palling around with dangerous types (Liddy; secessionists; other Republicans). Besides, McCain would represent Bush’s 3rd term, and if anything would present a clear and present danger to all life forms in the galaxy it’s 4 more years of Bushitler. Given that Obama supporters are sufficiently enraged as to assault McCain supporters: do Obama-Biden 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?

  2. Mike says:

    Have you even read 1984?

    People didn’t reject your idea because it was dangerous to the State of Affairs. People rejected your idea because it was ill-conceived and poorly reasoned.

    So there was nothing Thought Policeish about the critiques. Unless the metaphor has changed, and thus attacking an argument for being poorly reasoned makes us part of the Thought Police?

  3. Jason says:

    Wow, more recruits for the Thought Police. You guys are really over-thinking this. Kuo’s hypo is exactly the type of hypo that gets raised all the time by professors and students in law school. The point is to get you to think about the scope of the law and whether the law achieves policy goals. Don’t get so bent out of shape.

  4. dobe gulia says:

    Susan, it was hard to treat your original post as “legal analysis,” for it said not a single word about the key issue — the first amendment. Nevertheless, people engaged with your hypo and produced some nicely (and not-so-nicely) reasoned critiques.

    You could have responded to those critiques and explained why exactly the first amendment concerns were overblown. But you didn’t do that. Even in your “rebuttal” post, your entire constitutional analysis fit in a single sentence: “First Amendment rights are not absolute.” Instead of responding to your critics, you simply announced that criticism of your views constitutes “thought control.” That’s beyond embarrassing.

  5. Susan Kuo says:

    Dobe, my apologies for not being as responsive as you might have liked. Please don’t take my lack of response as evidence of lack of interest. To the contrary, I enjoyed reading the comments. Even the ones that seemed (to me) to miss my original point raised ideas or highlighted facets of their authors that were worthy of consideration.

    But perhaps I should be clearer about the point of this and my original post: Putting aside for a moment (and without disdain) any First Amendment claim that might be raised in defense to a criminal charge for political speech that leads to a prohibited result, might one argue that this conduct falls within the reach of our criminal laws?

    I understand (and share) the enthusiasm for the First Amendment, but its guarantees do not necessarily foreclose consideration of my hypothetical. Would I argue that any and all political speech should suffice for criminal responsibility? Definitely not. To conclude, however, that the First Amendment will always reign supreme and that a refusal to acknowledge this is somehow wrongheaded seems a tad bit confining. Is a First Amendment claim relevant to my hypothetical? Absolutely. But I purposely limited my analysis so as to explore the outer boundaries of our criminal laws (Jason is right on point about this in his comment above and in his comment under the original post). Even without a First Amendment defense, I am curious as to whether our criminal laws would (or should) extend this far.

    But those are just my thoughts. You are certainly welcome to have (and share) your own.

  6. Humblelawstudent says:

    Quite a funny post.

    Your critics aren’t the “thought police.” They are calling you out on your first post for your shoddy legal reasoning.

    In this posting, you remembered the little technicality called the first amendment. Good job! Now your hypo at least makes sense. You call them the “Thought Police,” perhaps the “Dumb Police” is more accurate.

  7. Jason says:

    Given the tenor of his/her comment, Humblelawstudent’s screen name is clearly an oxymoron.

  8. Quidpro says:

    Professor Kuo justifies her earlier post as a hypothetical that she would typically raise in class. This speaks volumes as to the present state of legal education in Amerika.

  9. Mike says:

    The point is to get you to think about the scope of the law and whether the law achieves policy goals.

    No. She missed the First Amendment issue.

    It’s like saying, “Jack and Jill had sex. It was rape.” Someone then asks about consent. She says, “That’s not relevant.” Um, yeah, it is. By definition, sex isn’t rape without lack of consent.

    Her post discussed criminalizing speech. By definition, you can’t discuss criminalizing speech without a discussion of the First Amendment.

    P.S. Do you understand the Thought Police metaphor? I suggest you actually read 1984 before (mis)using the Thought Police metaphor again.

  10. Terri Clark says:

    Mike, I thought that the point of the first post was to consider the ramifications under the criminal law. Doesn’t it have to be a crime before the 1st amendment comes in? If it isn’t a crime, then there’s nothing for the 1st amendment to defend. You’re trying to force the cart before the horse. I think that we can get to the 1st amendment, and I didn’t think that Ko was trying to say we’d never get there. He was trying to say let’s look at the criminal law first. Not my idea of fun, but law professors are bizarre. Ha Ha.

  11. Hans Bader says:

    Susan Kuo owes an apology for her nasty, disgraceful, and misleading personal attack on Walter Olson, a respected legal commentator and long-time defender of the First Amendment, for deliberately distorting what he said, and labeling him the “thought police” for pointing out, in understated terms, her embarrassingly shoddy reasoning and attempt to silence people she disagrees with.

    Olson is not, and never has been, as Kuo suggests, a “First Amendment absolutist,” nor did he ever suggest, as she claimes, that the “mere existence of the First Amendment invalidates the notion of criminal liability for political speech.”

    Instead, he correctly pointed out that Kuo’s attempt to impose liability for the political speech that offends her is squarely at odds with cases like the Supreme Court’s decision in NAACP v. Claiborne Hardware (1982) — which Kuo did not even mention — an omission akin to ignoring the elephant in the room.

  12. geokstr says:

    Why is it that the few (unfounded and unsupported) instances that Prof Kuo condemns are only about McCain and Palin “hate” speech, and for merely mentioning Ayers.

    She apparently has difficulty noting the absolutely despicable, vulgar, and inflammatory language that has been used by the democrats and their surrogates not only in this campaign but for many, many years. Vicious lies, smears, rumors, and even death threats are all over the left side of the internet, and spread by the media as well. It is indicative of the highly selective outrage that permeates those on the left that she somehow cannot see these as well, nor apparently is she disturbed by them.

    Obama’s own campaign and surrogates have attempted to intimidate conservative blogs and non-profit groups that are critical of Obama with threats of legal action and even IRS investigations. Just wait until they actually conrol all the enforcement funtions at the federal level.

    They have even pre-emptively labeled as “racist” any criticisms of Obama whatsoever. McCain has been intimidated into not even talking about Wright, Phleger, or their destructive Black Liberation Theology because of this.

    Look for the Orwellian “Fairness Doctrine” to be passed in record time to shut down talk radio and similar legislation designed to reign in only the right wing on the internet. The Obama administration will claim that none of these actions are trying to curtail “free speech”, but that is exactly their purpose.

    Will the good professor be out front with us vigorously protesting these new laws? Will she even pose another “thought experiment” to defend conservatives from this onslaught against OUR speech?

    The left has made so many inroads into curtailing freedom of speech via coercion and intimidation that it is difficult to even recount them all, starting with the PC that our universities are already immersed in. But the professor only finds “dangerous” speech when someone on the right attempts to connect Obama to Ayers.

  13. Nicolas Martin says:

    As I was gardening this morning I mused disgustedly about the behavior of McCain, Palin, and their supporters. Some of the online video showing the crowds screaming hateful things at rallies is extremely disturbing. But I should have known that a leftist professor would respond to them with something even worse.

  14. Prof. Kuo: You have a certain standard to maintain as a law prof and an expert in a specialty related to your proposal.

    I am interested in any case law you can find to support your theoretical. It seems to be an over-reaching lawyer gotcha driven by hatred.

    If there is no case law, your hypothetical is irresponsible. And, no, as an expert you have a greater responsibility to carefully construct your utterances, or to openly disclose you are merely letting off steam, as anyone else can.

    I am not filing any ethics complaints because I strongly believe in your freedom to speak, even if irresponsibly as an expert.

    If I am a bridge engineer could I get drunk and claim a span of a certain length will hold up with only two beams, and not three. If a bridge collapses after someone read my irresponsible drunken expert utterance, I have violated a duty to do no harm as an expert who is more likely to influence than members of the public.

  15. Susan Kuo says:

    Quidpro, you raise an interesting issue. Why do you, as an attorney, feel that American legal education is lacking? As someone who hires young attorneys, have you noticed a change in the quality of their education? If so, can you describe this change and what suggestions do you have to improve legal education?

  16. Quidpro says:

    Profesor Kuo:

    The deficiencies of American education in general, and law school education in particular, are many. Time and space permit only a few observations.

    First, there is the quality of writing. Language is the stuff with which lawyers work. It may well be too late when students come to law school to correct all of the bad habits they have collected. Nonetheless, I’m sure you have also been very disappointed in the quality of writing. Law school does not appear to be helping resolve this problem. Is this because there is an emphasis on politicization rather than teaching the craft of law?

    This leads to my second point. Several Ivy league schools famously barred military recruiters from campus in protest to the military’s position on homosexual advocacy. Law schools are in the forefront of the wave of political correctness sweeping over American education. “LGBT”, “La Raza”, and other advocacy acronyms are present at virtually all law schools. Professors are often enthusiastic supportors of such groups. Do you not believe that law students tailor their answers to the perceived political beliefs of their professors?

    Third, law schools, along with other post-graduate programs, also lead the way in the post-modernist deconstruction of truth. If Law is nothing more than the use of power by which the privileged oppress the marginal, then, as your thought experiment suggests, we can ignore the First Amendment to reach the desired goal. “What is truth?”, Pilate asked. But, he did not wait for an answer. Why should your students?

    I could probably come up with other examples, but these cover the main points. When we hire young lawyers from law school, we look for those who write well. We look for those who can argue a client’s position with clarity and conviction. We look for those who enjoy hard work and have a hunger for knowledge. It is my prayer that law schools work to create such students.