Following Death Threat Against Obama at Palin Rally, Prompted By Her Accusations of Terrorist Associations, Palin Must Be Investigated for Incitement

Secret Service Involved; Identical Threat of Murder Repeated At McCain Event (Video Added); The Los Angeles Times, ABC News, The Boston Globe, and Others Picking Up Story of What Joe Biden Calls "Dangerous" Behavior By McCain-Palin Campaign at Rallies



[UPDATE: Instead of backing down, the McCain-Palin campaign has just stepped up its incitement attempts, releasing a statement from a McCain supporter which includes the following language: "Barack Obama's friend tried to kill my family." Dem VP Candidate Joe Biden has now issued a statement on this situation. The Huffington Post is now on board as well. A relevant (and terrifying) quote from this last article: "Palin supporters turned on reporters in the press area, waving thunder sticks and shouting abuse. Others hurled obscenities at a camera crew. One Palin supporter shouted a racial epithet at an African American sound man for a network and told him, 'Sit down, boy.'" The Nation has now written not one but two articles on this].

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."

The punishment for treason is death, of course, as the man who shouted out during the Palin rally that Obama was/is a traitor surely knew. Likewise, the man who screamed that Obama was a terrorist surely knew conviction for terrorism carries with it the death penalty.

Now things have gone one step further. Based on an article in The Washington Post, the Secret Service has reason to believe that Palin's scorching rhetoric about Obama's terrorist "associations" led a man hearing her words at a recent McCain-Palin rally to scream "Kill him!"

[NB: The New York Times confirms this was a separate incident from the incident at the McCain rally shown/heard in the video above].

That's right, a direct threat to the life of a presidential candidate, which threat arose in the context of--and, based on a video alleged to exist, as a direct result of--a public speech by Sarah Palin accusing Barack Obama of being a terrorist sympathizer.

Incitement generally requires a specific exhortation toward a particular crime, but not always. It can be enough to "persuade" or "encourage," in the common law, and thus in many jurisdictions. The mens rea is summarizes as follows: "The inciter must intend the others to engage in the behaviour constituting the offence, including any consequences which may result, and must know or believe (or possibly suspect) that those others will have the relevant mens rea." It seems to me that Palin must now be aware that a) asking rhetorical questions about how Barack Obama should be received, given his terrorist "associations," b) may or has been responded to with threats against the life of Obama publicly articulated in her presence (and remember, threats against current presidential candidates reach federal criminal offense level infinitely quicker than threats against anyone else, as Palin herself would have every reason to know, given her status as a vice presidential candidate with Secret Service protection).

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). While I'm certainly being somewhat liberal with my interpretations of the laws here, it's not so much as you'd think; indeed, in the common law "incitement may be implied as well as express and may be directed to persons generally." That broadens things significantly, especially given that the offense is already one which is largely in the eye of the beholder (read: the prospective prosecutor). A simple way of looking at this would be to imagine your neighbor setting up a soapbox on his front lawn and repeating the words of Palin's speech verbatim until members of the crowd shouted "Kill him!" (re: Obama) and the Secret Service had to get involved. Sound kosher to you?

Now imagine the in-person crowd is approximately 1000 times larger, and the speech is televised both nationally and internationally.

Whether or not the statutory definitions are met, it's certainly worth an investigation, and some serious consideration on the part of Sarah Palin. She is giving the identical speech in front of massive outdoor crowds at venues across the United States. She is either aware or will shortly be made aware (through the Secret Service investigation) that her rhetoric has twice led members of the audience to accuse Obama of death-eligible criminal offenses, and once led to a direct threat against Obama's life. Nor were these views only privately and/or confidentially articulated; members of the crowd, upon hearing Palin's words, shouted out their threats at the top of their lungs, attempting to be heard by the entire crowd (of thousands) and Palin herself. It is not unreasonable, under such circumstances--circumstances which have never before arisen in the modern era of American politics--to think that attorneys, political commentators, and law enforcement officials should now be talking about, or at least being asked questions about, Palin's liability under existing incitement laws.

Look at it this way: When you accuse your opponent of having the wrong tax policy, what are you hoping will happen? You're hoping the listener will vote for you and/or against the other guy. When you accuse your opponent of "palling around with terrorists" (as Palin did), can we still say, from a legal standpoint, that your aim is an electoral one, given that your accusation--if true, as articulated--could lead to arrest, conviction, and a death sentence? And how does that change if/when such accusations repeatedly, consistently, and predictably lead to either threats against the life of your opponent or else outraged, publicly-screamed accusations to the effect that your opponent has committed multiple death-eligible criminal offenses?

If what Palin was doing on a daily basis was "par for the course" in American politics--if, in fact, her speeches were nothing out of the ordinary for an American political campaign--wouldn't such threats as those described above have arisen out of (as in, directly out of and during) other political speeches, in other election cycles? Wouldn't the media be passing over Palin's rhetoric as unremarkable, instead of referring to it as "nasty" to an unprecedented degree, conspicuously hurtful to McCain's chances of election, and risibly false? Wouldn't there have been no calls from the media, or in political circles, for Palin to stop accusing Obama of "palling around with terrorists"--instead of, as is in fact the case, countless such exhortations, from all quarters?

And whatever one's view of this, how can the Secret Service, in investigating this threat against Obama's life, not also investigate the words to which the said threat was a direct reaction? Especially when these words will be repeated again and again in front of hundreds of thousands of Americans before Election Day?

[Postscript: A reader on another site wondered publicly whether what's being discussed here would constitute what attorneys call a "prior restraint" (on free speech). Putting aside other reasons why what's suggested here wouldn't qualify as such--and note, what's being suggested here is, at this point, merely an investigation--I should reiterate that the now twice-uttered "Kill him!" screams, while not likely state-level criminal offenses, may well be federal offenses in the context of an ongoing presidential election. No one would know this better than McCain and Palin, who are presumably protected by any such federal statutes in the same way Obama and Biden are. At the least--at the very least--it should be unthinkable to persons of good faith (of whichever political stripe) that McCain and Palin would not alter their standard stump speeches substantially under the circumstances].