Children accuse someone of “lying” when they disagree. Rational adults, meanwhile, disagree with each other and understand that differences of opinion do not necessarily indicate dishonesty, and that someone can be wrong without being a “liar.” This brings me to my response to the “Instant Message” question in the local newspaper about the second impeachment of President Donald Trump:
President Trump told the crowd to “peacefully” make their voices heard. No private citizen would be convicted of incitement if he used the exact same words that President Trump did. Trump was wrong: The election was not stolen. But being wrong is not a high crime or misdemeanor.
And here is one of the comments:
Tibbs is two for two for lying in todays HT.
OK, fine. Show me the “lie.” I made three specific factual claims in my response:
1. President Trump did explicitly tell the crowd to “peacefully” make their voices heard. You can watch the video and listen to the audio. There is no lie there, and everyone knows it.
2. No private citizen would be convicted for using the same words. This is not a lie. If I am wrong, I invite anyone to show me a private citizen who has been convicted of incitement for using those same words. Provide the name of person convicted and the year it happened.
3. Trump was wrong about the election being stolen. It was not. Some Trump supporters might accuse me of “lying” here, but I assume the Tibbs-hater would agree with that one.
So show me which of the first two factual claims is false. If anyone can do that, I will retract the claim in the comments AND my next letter to the editor will be a retraction of and an apology for my IM response.
I only get fifty words for an “Instant Message” response, so I will expand on my first 100% totally true factual claim: Every politician, political operative and political pundit uses words like “fight” in their speeches and public statements. Many times this rhetoric is overheated and unproductive, but that does not mean it is encouraging people to use physical violence. This is especially true when someone (like Trump) explicitly tells the crow to “peacefully” make their voices heard.
Was Trump’s rhetoric productive or useful? No. Hyperbole is Trump’s native language and has been for decades. His refusal to discipline his mouth is the single biggest reason he is no longer the President. Trump’s supporters betrayed him with their refusal to rebuke him for his language and urge him to town it down. But reckless and irresponsible rhetoric is not a criminal act. If it were, the majority of elected officials, political pundits, political operatives, issue advocacy groups, candidates for office would be behind bars.
The legal standard for incitement is strict for a reason: It would be very easy to crush political speech that makes those in power unhappy, labeling it as criminal. That’s why the Supreme Court ruled speech is not punishable unless it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Unless Brandenburg v. Ohio is overturned, President Trump cannot be criminally prosecuted for incitement. We should be thankful for that, because once you cast the net that wide, we have basically abolished the First Amendment.
That, of course, does not mean Trump could not be impeached or barred from holding office by the U.S. Senate for the words he used, because those are both inherently political decisions. But even that precedent could lead to a lot more people than just Donald Trump being impeached and barred from holding office for speech that explicitly does not call for violence. That is not a world we should want.