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Saturday, October 11, 2008

Ugly political rhetoric v. Unlawful political rhetoric

Bloggers, and belatedly the mainstream media, have been sharply criticizing McCain and his campaign for the increasingly angry, ugly, and personal tone of their campaign rhetoric, which has played up the Obama-as-terrorist-Muslim-traitor-secret-communist, and which has prompted the over-the-top rage and hatred it has stoked and provoked in the crowds at McCain and Palin rallies. Video and reports from rallies shows audience members shouting "Kill him" and "Off with his head" and "terrorist" and "traitor" and "treason" during speeches and rallies. There are reports of racial epithets being shouted, at Obama and at members of the press. Susan Kuo offers some thoughts. The "kill him" shout-out has drawn interest from the Secret Service. And in a Town Hall today, McCain urged supporters to be respectful and not to be scared of Obama and apparently cut-off one town-hall questioner who claimed to be scared of Obama because he is an Arab. On the other hand, when McCain described Obama as a "decent family man," the crowd booed. And, in response to Obama's criticism of the divisiveness and ugliness of the rhetoric at these rallies, the McCain campaign said Obama was attacking McCain supporters and does not understand "regular people and the issues they care about"--which, to the McCain campaign, apparently includes whether Obama is a terrorist who should be tried for federal crimes.

Much of the noise has been virulent and ugly, playing, not subtly, to Obama's scary "otherness." Lowest-common-denominator, atmosphere-of-hatred-and-violence stuff. But I cannot buy the notion being floated that anything unlawful is happening. McCain and Palin have not come anywhere close to the constitutional line of incitement--no actual violence or unlawful conduct against Obama is temporally imminent or likely to occur as a result of McCain/Palin campaign statements. And I am fairly certain that no one in the campaign intends anyone to engage in violence against Obama. Nor do the random shouts in the crowd amount to true threats against Obama by McCain supporters. The Secret Service has a tendency, not unwarranted, to over-investigate everything when it comes to political leaders. But "kill him" shouted out at random in an impassioned crowd of thousands with Obama nowhere near the crowd, just does not amount to a threat. (Plus, it is not clear whether the shout was directed at Obama or Bill Ayers). In short, nothing I have seen or read about comes close to the line of unprotected speech.

This is not to defend either McCain's choice of campaign rhetoric or the response of their supporters--and, it seems to me, it is of a qualitatively different tone than what is coming from the Obama campaign or its rally attendees. And it is appropriate to speak out against and denounce the tone of comments (and to praise McCain for trying to put the breaks on it) and to call for a more civil discourse. But ugliness is not unlawfulness. And whatever criticism the campaign warrants for engaging in personal attacks and riling up the crowd, charges of engaging in "borderline incitement" should not be among them.

Posted by Howard Wasserman on October 11, 2008 at 11:52 AM in Current Affairs, Law and Politics | Permalink


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Tracked on Oct 12, 2008 7:50:16 AM


Now that the Secret Service has investigated and found that no one actually shouted 'Kill Him', does Howard, Bart, or anyone else care to add additional remarks?

Posted by: Anon | Oct 16, 2008 12:45:57 PM

I think the point of the post and some of the comments is no so much that negative campaigning is per se problematic as much as that at some point negative campaigning may cross a line be it a line of taste (Palin t-shirts), legality (the terrorist comments which result in some people making threats against another's life), truthfulness, or propriety, etc. Of course, whether a line has been crossed is often subjective (think of Kirk Lazurus's response to Alpa Chino's comment about the dingo eating his baby). I also think it is worth keeping in mind that the original post concludes that the line of legality has not been crossed by the Mccain campaign.

That said, I think Adam's characterization of what Prof. Wasserman said is unfair. Adam only quotes the end of the sentence and ignores the context. To me it appeared Prof. Wasserman was saying the following: (1) that Obama criticized the divisiveness and ugliness of the campaign at its rallies at which he was called a terrorist by some in the crowds; (2) that Mccain characterized that criticism as an attack on his supporters rooted in Obama's lack of understanding of those supporters without carving out an exception for those in the crowd who called Obama a terrorist; and (3) by failing to exclude that element the Mccain campaign was at least tacitly accepting it. I think the logic makes sense.

As far as playing tit for tat, I do not think it a fair to equate shouts of kill him and he's a terrorist to comments that one's health care policy might result in more loss of life than another health care policy. Terrorists can be convicted and executed. Bad policy makers can only be voted out of office.

And as far as disgusting, tasteless t-shirts being equated with death threats and accusations of terrorism, come on people, is it really the same?

Posted by: Jim Green | Oct 14, 2008 7:40:01 AM

Yeah, well there are 1,700 hits for "ex-terrorist" + "Ayers" and over a million for "terrorist" + "Ayers". He's a terrorist and a piece of human garbage (757 hits).

Also, on a serious note, what is everyone's problem with negative campaigning re: Jeremiah Wright, Bill Ayers, Keating 5, etc.? If someone who has put himself out there to run for public office, don't I, the voter, have a right to know that he's chosen to associate himself with unsavory characters in the past?

Posted by: Paul Washington | Oct 14, 2008 1:06:13 AM

There are 54,000 results for ex-felon in google. 899,000 for ex felon, no -. 1,340,000 for ex-con. 45,900 for ex-terrorist. 3,270 for ex-murderer.

And 189, 000 for pedantic conservative.

If there is a bright side to the political eunuching of the GOP for Adam and friends, it will be that they will be in a grand position to write with great verisimilitude an historical novel featuring a young member of the Whig party.

Alternatively, they might dedicate their efforts to putting down memories of the Republican party as historians will need a record to reconstruct its activities.

Godspeed, gentlemen.

Posted by: Bart | Oct 14, 2008 12:43:09 AM

What about me?

Posted by: Ex-con | Oct 13, 2008 5:54:24 PM

This is bullsh*t in the highest order. Just read some the nasty caustic things directed at McCain and Palin by the kos-kids or any of like-minded individuals and you will see that there are nut-jobs on both sides who are dishing out the hate. Look at those idiots in Philly yesterday who showed up to a Palin rally wearing "Palin is a cunt" shirts.

These people are voting for Obama, not McCain. Obama can't control them any more than McCain can control someone at his rally.

Posted by: anon | Oct 13, 2008 12:08:44 PM

If someone commits a murder, is he an 'ex-murderer' at every point after the actual murder? Certainly not. He is just considered a murderer.
Even if the person reforms himself, and goes on to live a productive life, he is still considered a murderer. You don't become an ex-murderer simply by not committing murder anymore.

Posted by: D | Oct 13, 2008 10:03:54 AM

"So at the very least, McCain's ad should have said 'ex-terrorist' right?"

I certainly wouldn't say so. I didn't know that a terrorist is a terrorist only while committing a terrorist act, or for a designated period thereafter. When will Terry Nichols cease to be a terrorist? How about the Birmingham church bombers?

So long as you intend to post head-scratchers like that last post, perhaps you'd be wise not to race about calling others "dimwitted"!

Posted by: Adam | Oct 12, 2008 11:40:06 PM

"And nowhere has McCain accused Obama of facilitating Ayers's terrorist actions; Obama was a child at the time."

So at the very least, McCain's ad should have said "ex-terrorist" right?

We all know the Republican innuendo game. They say just enough to rile up their dimwitted supporters and give their more educated supporters like Adam enough cover to plausibly deny the dog whistle.

If there's a survival guide for the political wilderness, Republicans should buy it.

Posted by: Bart | Oct 12, 2008 10:48:16 PM


I don't think I've ever disputed that McCain has that ad out. Indeed, I don't think there's any dispute that (1) Ayers is a terrorist, or (2) that Obama worked with him.

But, again, where has McCain suggested that Obama himself is a terrorist?

The two accusations are, of course, completely different. Obama accused McCain of working with lobbyists; that doesn't mean that McCain is a lobbyist. McCain accuses Obama of working with Fannie Mae executives; that doesn't mean that Obama is a Fannie Mae executive. And nowhere has McCain accused Obama of facilitating Ayers's terrorist actions; Obama was a child at the time.

Posted by: Adam | Oct 12, 2008 4:17:00 PM


McCain is running an ad called "Dangerous" in which the narrator intones "Obama worked with terrorist Bill Ayers when it was convenient."

So who are you trying to fool?

Posted by: Bart | Oct 12, 2008 3:29:24 PM

Howard, here's what you said:

"which, to the McCain campaign, apparently includes whether Obama is a terrorist who should be tried for federal crimes"

Again, when did the campaign ever suggest that that it even humors the notion that "Obama is a terrorist who should be tried for federal crimes"?

With respect to your new explanation: Do you honestly believe that because (1) the McCain campaign says that Obama doesn't understand issues the American people cared about, and (2) some nutjobs in an audience think Obama is "a terrorist and traitor," that it follows that (3) the McCain campaign humors the notion that "Obama is a terrorist who should be tried for a federal crime," or considers this an issue important to the American people?

Your attempted syllogism makes absolutely no sense. Let's look at it from another direction:

1.) The Democratic Party recently announced that "John McCain doesn't understand the challenges that Americans face."

2.) DailyKos.com announces that "John McCain's health care system" will "kill off [the] electorate."

Does it now follow that

3.) The Democratic Party believes that the McCain campaign's response to "the challenges that Americans face" would result in "kill[ing] off [the] electorate"?

We can play this game all day. Pick a quote from the Obama campaign saying that McCain is wrong on an important issue or that McCain doesn't care about important issues, pick a quote from a fringe element that ascribes an offensive position to McCain on that issue, and then tie the Obama campaign to the fringe element's offensive statement. Who are we trying to fool?

Posted by: Adam | Oct 12, 2008 12:22:04 AM

I did not say the McCain campaign had said this. What I said was this: The campaign said Obama did not understand the issues the American people cared about--and apparently what the American people care about, at least based on the comments being made by supporters at the rally, is that Obama is a terrorist and a traitor--and treason is a federal crime.

Posted by: Howard Wasserman | Oct 11, 2008 11:01:44 PM

In that last line, I meant to say,

when did the McCain campaign say that "Obama is a terrorist who should be tried for federal crimes"?

Posted by: Adam | Oct 11, 2008 9:31:26 PM

"... McCain's choice of campaign rhetoric or the response of their supporters--and, it seems to me, it is of a qualitatively different tone than what is coming from the Obama campaign or its rally attendees."

Maybe. But I must say that after eight years of preposterously overheated rhetoric coming from the Democratic Party and its supporters toward Bush and Cheney, (to say nothing of one Hollywood actress's recent musings on a possible gang-rape of Sarah Palin), it's a bit hard to take seriously the media's suddenly somber tone.

I say, I pox on both houses.

And speaking of overheated rhetoric: when did the McCain campaign "Obama is a terrorist who should be tried for federal crimes"? Sheesh.

Posted by: Adam | Oct 11, 2008 9:30:21 PM

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