Johnson

Fight like hell

When does a ery speech cross the line into incitement?

 


 

Jan 14th 2021 | words 853

 

 

 

JOHNSONS FIRST column after the election of Donald Trump in 2016 looked at speech acts, or what J.L. Austin, a philosopher, called doing things with words. Part of a presidents awesome power is that merely by opening his mouth he can set the official policy of the United States. Mr Trump, that column concluded, needed to learn to watch his words, given that they would soon constitute official acts.

 

He did not. Now he has been impeached for an offence grounded in speech: incitement of insurrection. On January 6th he delivered a tirade near the White House protesting that Novembers election had been stolen from him. Soon the Capitol building at the other end of Pennsylvania Avenue, where legislators were certifying the vote, was ransacked by his audience. Five people died. Mr Trumps accusers say he incited the violence, his defenders that he merely gave a typically barnstorming speech, and was not responsible for the mob.

  

Impeachment is a political process, not a criminal one, but the law offers some pointers for the neutral. To begin with, Americas First Amendment strongly protects speechincluding much that would be illegal in other democracies. Incitement of hatred of races or religions, for example, is banned in many European countrieseven though the thing being incited (hatred) is not itself a crime. American law does forbid solicitation to commit a crime of violence. But what that means in practice has been sharply circumscribed by the courts. Sometimes even actual calls for violence are protected.

 

The solicitation statute requires intent by the speaker that another person should commit a crime. In 1969 the Supreme Court added two further tests in Brandenburg v Ohio. It protected the right of a Ku Klux Klan leader to call for revengeance against African-Americans and Jews, finding that such calls were too abstract to be criminal. Such speech was bannable only if directed to inciting or producing imminent lawless action and likely to incite or produce such action.

 

Which of these three teststhe speakers intent, the imminence of a crime and its likelihoodare met in the case of the Capitol riot? Imminence, clearly: the mob was in the Capitol building within an hour of Mr Trumps harangue. What he intended, though, is less starkly obvious.

 

The president used the word fight 20 times. But such words can be employed metaphoricallyMr Trump also referred to members of Congress who took his side in rejecting the election results as warriors. He never explicitly said Ransack the Capitol. The mob, in this defence, took matters into its own hands. Indeed, at one point Mr Trump said the crowd should peacefullymake your voices heard.

 

Yet a direct command is hardly required to persuade someone to do something. Paul Grice, like Austin a philosopher of language, noted that a tacit but virtually universal co-operation principle is observed between speakers and hearers. It involves a maxim of quality (be truthful) and a maxim of relation (do not waste an audiences time). Expecting speakers to observe these conventions, hearers will try to interpret statements that seem to flout them in such a way that they still make sense.

 

What was the crowd thinking when Mr Trump said, We must stop the stealand how was it likely to respond? Congress was hours from certifying Joe Bidens win. Marching to the Capitol just to shout outside would stop nothing. Further guidance might have been found in Mr Trumps assertion that when you catch somebody in a fraud, youre allowed to go by very different rules. What rules? You have to be strong, he urged. We fight like hell and if you dont fight like hell, youre not going to have a country any more. The crowdcontaining, as the president ought to have known, numerous avowed extremistscould assume either that his superabundant fighting talk was irrelevant, or that his single mention of peaceful protest was.

 

A luminary of classical liberalism, John Stuart Mill, defended speech that was hot-tempered even to a fault: An opinion that corn-dealers are starvers of the poorought to be unmolested when simply circulated through the press, Mill wrote. But such words may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn-dealer. In that case, angry words are not merely words. Mr Trump surely knows how devoted his followers are. Our president wants us here, one said inside the Capitol. We wait and take orders from our president.

 





\n

Economist | The language of incitement

 

  

 

Johnson

Fight like hell

When does a ery speech cross the line into incitement?

 


 

Jan 14th 2021 | words 853

 

 

 

JOHNSONS FIRST column after the election of Donald Trump in 2016 looked at speech acts, or what J.L. Austin, a philosopher, called doing things with words. Part of a presidents awesome power is that merely by opening his mouth he can set the official policy of the United States. Mr Trump, that column concluded, needed to learn to watch his words, given that they would soon constitute official acts.

 

He did not. Now he has been impeached for an offence grounded in speech: incitement of insurrection. On January 6th he delivered a tirade near the White House protesting that Novembers election had been stolen from him. Soon the Capitol building at the other end of Pennsylvania Avenue, where legislators were certifying the vote, was ransacked by his audience. Five people died. Mr Trumps accusers say he incited the violence, his defenders that he merely gave a typically barnstorming speech, and was not responsible for the mob.

  

Impeachment is a political process, not a criminal one, but the law offers some pointers for the neutral. To begin with, Americas First Amendment strongly protects speechincluding much that would be illegal in other democracies. Incitement of hatred of races or religions, for example, is banned in many European countrieseven though the thing being incited (hatred) is not itself a crime. American law does forbid solicitation to commit a crime of violence. But what that means in practice has been sharply circumscribed by the courts. Sometimes even actual calls for violence are protected.

 

The solicitation statute requires intent by the speaker that another person should commit a crime. In 1969 the Supreme Court added two further tests in Brandenburg v Ohio. It protected the right of a Ku Klux Klan leader to call for revengeance against African-Americans and Jews, finding that such calls were too abstract to be criminal. Such speech was bannable only if directed to inciting or producing imminent lawless action and likely to incite or produce such action.

 

Which of these three teststhe speakers intent, the imminence of a crime and its likelihoodare met in the case of the Capitol riot? Imminence, clearly: the mob was in the Capitol building within an hour of Mr Trumps harangue. What he intended, though, is less starkly obvious.

 

The president used the word fight 20 times. But such words can be employed metaphoricallyMr Trump also referred to members of Congress who took his side in rejecting the election results as warriors. He never explicitly said Ransack the Capitol. The mob, in this defence, took matters into its own hands. Indeed, at one point Mr Trump said the crowd should peacefullymake your voices heard.

 

Yet a direct command is hardly required to persuade someone to do something. Paul Grice, like Austin a philosopher of language, noted that a tacit but virtually universal co-operation principle is observed between speakers and hearers. It involves a maxim of quality (be truthful) and a maxim of relation (do not waste an audiences time). Expecting speakers to observe these conventions, hearers will try to interpret statements that seem to flout them in such a way that they still make sense.

 

What was the crowd thinking when Mr Trump said, We must stop the stealand how was it likely to respond? Congress was hours from certifying Joe Bidens win. Marching to the Capitol just to shout outside would stop nothing. Further guidance might have been found in Mr Trumps assertion that when you catch somebody in a fraud, youre allowed to go by very different rules. What rules? You have to be strong, he urged. We fight like hell and if you dont fight like hell, youre not going to have a country any more. The crowdcontaining, as the president ought to have known, numerous avowed extremistscould assume either that his superabundant fighting talk was irrelevant, or that his single mention of peaceful protest was.

 

A luminary of classical liberalism, John Stuart Mill, defended speech that was hot-tempered even to a fault: An opinion that corn-dealers are starvers of the poorought to be unmolested when simply circulated through the press, Mill wrote. But such words may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn-dealer. In that case, angry words are not merely words. Mr Trump surely knows how devoted his followers are. Our president wants us here, one said inside the Capitol. We wait and take orders from our president.

 





\n

No comments:

Post a Comment