Overbroad, Vague and Un-American

Carol Platt Liebau
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Posted: Jan 10, 2011 7:19 PM
It goes without saying (or should) that threatening violence against a public official -- or anyone, for that matter -- is wrong.  If there is a real threat of imminent harm, or incitement of others to violence, it's already a crime.

But given the First Amendment's free speech rights guarantees, Democrat Rep. Robert Brady is treading a constitutionally suspect path when he advocates legislation that would make it a federal crime, as CNN puts it, "for a person to use language or symbols that could be perceived as threatening or inciting violence against a Member of Congress or federal official." 

Yes, there are unusually stringent protections for the President, given his unique status as the single head of our executive branch and commander-in-chief of the armed forces.  But it's overkill to put the Secret Service in charge of investigating any use of "language or symbols" that someone (who?) could "perceive" as "threatening" to a federal official (and, at that, why stop at federal officials?  What about state officials?  What about public figures in general?).

Under Rep. Brady's law, would advocating "throwing the bums out" qualify as a crime?  It certainly sounds a lot like something some delicate soul could construe as "violent language."  And lots of lefties and Sarah Palin-haters could find themselves in a heap of legal trouble.

Look, I have no sympathy for hate speech -- and certainly not for those who disgrace our democratic republic by resorting to violence to solve political differences.  But given that credible threats against public officials are already actionable, it sounds a lot likeRep. Brady is trying to use the acts of a lunatic as a way to muzzle or punish speech that makes politicians uncomfortable -- witness his testimony, in the linked piece, to how frightened some public officials and their families are.

It's  natural that they would be frightened.  What happened on Saturday was awful.  But anyone in the public eye, in any capacity, sometimes receives ugliness and even threats (I have, as even a sometime radio talk show guest host).  But it's not clear that legislation that attempts to outlaw anything that someone could construe as threatening is the solution -- and it will be nearly impossible to write legislation doing so that will pass constitutional muster, i.e., that isn't fatally overbroad and vague.