Thursday, April 8, 2010

Bill Press Calls For Eric Erickson's Arrest, Does "Imminent Lawless Action" Test Apply?

By now, CNN's newest contributor, Eric Erickson, has made a name for himself with his recent comments regarding taking a shotgun to census workers should they approach his property. Talk radio host and political commentator, Bill Press, made an interesting observation recently regarding Erickson's comments.
Red state blogger and CNN contributor Erick Erickson refuses to fill out his census form. Which means a local census worker might show up at his home. If so, warns, Erickson – and I quote him directly – I’m gonna “pull out my wife’s shotgun and see how that little twerp likes being scared at the door.”

Now, there’s only one way to read that: he is threatening the life of a federal agent. Which is exactly what nine members of a Michigan militia group were arrested and thrown in prison for last week.

So, what I want to know is:

Why is Mr. Erickson still at large? He is as dangerous as any member of any armed militia who threatens the life of federal agents.

And why is Mr. Erickson still on CNN’s payroll? There should be no place for that kind of violent language on American television. Not even on Fox. Certainly, not on CNN.

Two things to remember: One, the census is no threat to anybody, and it IS required by the U.S. Constitution.

Two, I’m all for freedom of speech, but threats to assassinate government officials is not protected by the First Amendment.

Lock Erick Erickson up – and throw the key away.
While I agree with Press' assessment, I see one problem. While the members of the Hutaree militia actually circled a date on their calender to murder police officers, Erickson simply states he will draw a weapon on a federal agent should they approach his property. Subtle difference? Yes and no. Erickson is doing what all the conservative political pundits are doing nowadays - drawing a fine line between what constitutes the provocation of violence, so when the time comes, and his followers commit heinous crimes, Erickson can wash his hands of the incident by claiming he never said "shoot," only "draw."

This kind of rhetoric is dangerous, and I am beginning to come under the belief that this kind of speech is not protected by the constitution, much like yelling "fire" in a crowded movie theater, as argued by Justice Oliver Wendell Holmes in the court case of Schenck v. United States, to demonstrate the concept of "clear and present danger."

Brandenburg v. Ohio expanded the test on free speech that Schenck addressed, by stating that the "government cannot punish inflammatory speech unless it is directed to inciting and likely to incite imminent lawless action," which based on what we have been seeing play out in recent news, is exactly what is occurring. Conservatives have been stepping up their anti-government rhetoric, and infusing the language of right-wing fringe groups to press their message and motivate their base, but in doing so, they run the risk of actually pushing a certain percentage of those people over the edge - point in case, the threats and attacks against Democratic legislators, the attacks against the government, such as the the shooting at the Pentagon and the fly-in at the Texas IRS building, and the arrest of the Hutaree militia.

Here is what the court ruling of Brandenburg v. Ohio, regarding what exactly the "imminent lawless action" means:
The Court upheld the statute on the ground that, without more, "advocating" violent means to effect political and economic change involves such danger to the security of the State that the State may outlaw it.
In order for the language to be considered to be excluded from the constitution's protections of free speech, the "imminent lawless action" test must be invoked to judge seditious speech under the First Amendment. There are three elements of the test - intent, imminence, and likelihood.
The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
Does Erickson's talk satisfy the definition?

What is the intent of Erickson's comment? Erickson was very clear. If the government approaches him to fill out the Census, as required by the Constitution, he will pull out a shotgun on the federal agent.

What is the imminence of the action Erickson described? Since Erickson stated that he won't fill out the Census, a federal agent will come to his residence to try and get Erickson to complete the form.

What is the likelihood that what Erickson said will come true? In Erickson's case, I would say it is 50-50. He is filled with inflammatory rhetoric, but part of me wants to believe that away from the limelight, Erickson will cross all his "t"s and dot all his lowercase "j"s, but, considering the national platform Erickson has been given to espouse his philosophies, there will be a certain percentage that will take his comments as though he were a mouthpiece for God, and the likelihood that violence will happen will increase.

Basically, Erickson's, or Beck's, or Hannity's, or O'Reilly's, or Palin's, or any other person's advocacy of suing violent means against the government, is protected by the constitution, unless it is clear that they are "inciting or producing" lawless action, or what they are doing will likely cause lawless action, which is evident by the increase in violence directed towards the government.

More examples of trying to incite conservatives to conduct themselves lawlessly: Palin's "cross hairs" and "reload" comment, Breitbart's insistence that the government and union thugs have been using racism and violence against the Tea Party, and pretty much every minute of insanity Glenn Beck is on the air.

Want even more proof that pundits on the right are failing the "imminent lawless action" test?

Recently, Gregory Giusti, was arrested for allegedly threatening House Speaker Nancy Pelosi for her support on health care reform. Gregory's mother, Eleanor Giusti, blamed the rhetoric found on Fox News for inciting her son to make the threats. Media Matters For America had documented the threats against Pelosi, as well as the inflammatory comments made against Pelosi by Fox hosts.

The Washington Post also had an interesting article regarding threats against congress.
Anger over the health-care overhaul has led to a nearly threefold increase in recent months in the number of serious threats against members of Congress, federal law enforcement officials said.

The lawmakers reported 42 threats in the first three months of this year, compared with 15 in last three months of 2009, said Senate Sergeant at Arms Terrance W. Gainer, who had information about threats involving both chambers.

"The incidents ranged from very vulgar to serious threats, including death threats," Gainer said. "The ability to carry them out is another question and part of an investigation to determine what, if any, appropriate steps to take."

Nearly all of the recent threats appear to come from opponents of the health-care overhaul, said Gainer, who also served four years as chief of the U.S. Capitol Police. And, he said, there have been "significantly more" threats against House members than against senators.
Need I say more?


  1. I love that they asked for “Public Defenders” (and they thought they could bring down our government), undercover FBI agent, sweet. Since their inception the Teaparty crowd (not a movement since they do have the numbers or clout) because they are haters not debaters or as others have dubbed them screamers not dreamers. The simpleton Tea baggers are the same whiners that were crying when the McCain/Bailin ticket lost. Now that their yelling and screaming failed to stop the health care debate and the bill from passing they are crying again. Lets face it the Republicans had eight years to deal with health care, immigration, climate change and financial oversight and governance and they failed. The Republicans are good at starting wars (two in eight years, with fat contracts to friends of Cheney/Bush) but not at winning wars as seen by the continuing line of body bags that keep coming home. Instead of participating in the health care debate of ideas the Republicans party turned inward to your old fashion obstructionist party. In my opinion the Republican Waterloo loss was caused by the party allowing a small portions (but very loud) of the republican party of “birthers, baggers and blowhards” to take over their party. I will admit that this fringe is very good at playing “Follow the Leader” by listening to their dullard leaders, Beck, Hedgecock, Hannity, O’Reilly, Rush, Savage, Sarah Bailin, Orly Taitz, Victoria Jackson, Michele Bachmann and the rest of the Blowhards and acting as ill programmed robots (they have already acted against doctors that preform abortions). The Teaparty crowd think they can scare, intimidate and force others to go along with them by comments like “This time we came unarmed”, let me tell you something not all ex-military join the fringe militia crazies who don’t pay taxes and run around with face paint in the parks playing commando, the majority are mature and understand that the world is more complicated and grey than the black and white that these simpleton make it out to be and that my friend is the point. The world is complicated and presidents like Hamiliton, Lincoln, and Roosevelt believe that we should use government a little to increase social mobility, now its about dancing around the claim of government is the problem. The sainted Reagan passed the biggest tax increase in American history and as a result federal employment increased, but facts are lost when mired in mysticism and superstition. Although some Republicans are trying to distant themselves from this fringe most of them, having no game plan/ vision for our country, are just going along and fanning the flames. For a party that gave us Abraham Lincoln, it is tragic that the ranks are filled with too many empty suits. But they now claim they have changed, come on, what sucker is going to believe that? All I can say to you is remember Waterloo.

  2. I expect some kind of GOP resurgence at the polls, but mostly in in traditionally conservative districts where Fox News plays an important role in delivering "news" to the constituency...

    Either way, the conservative spin cycle will make any win appear to be a huge victory and any loss to be the result of corruption...

    Either way, if the GOP continues to embrace the fringe, they will further alienate moderate votes, securing Democratic positions...

    Waterloo... I think so!

  3. This reminds me of the comments Neal Boortz stated on his show last week (it was on April 4th, not sure if it was a replay from earlier in the week).

    One of his callers was referencing the recent threats and tea-bagger actions as buildup to more violent future events, asking if this could eventually lead to a 2nd civil war, with shots being fired.

    Boortz started off pretty normal and logical "This is a civil war, but with ballots as ammunition and not bullets" saying how our votes in November will be how the American people fight back against this Socialist regime being imposed by Obama. Thats why our government functions the way it does, so he's giving sound advice unlike most crazies right?

    Well he falls into the same trap as he then continues "But if November comes and nothing happens, than we will have to take drastic actions".

    Basically he's saying "If we te-baggers are in the minority and have little impact on voting and getting our way, than screw the system and start cleaning your guns to fight back".

    Honestly, there are followers of these people who will hear that and start preparing to take action.

    And they all know it, but they can always easily hide behind the "But I'm an entertainer and I was just making rhetorical statements and not explicitly telling people to do BLANK" legality.

    Being crazy and acting like an informed news source is good for ratings and their pockpetbook, but it is dangerous because they have influence on a certain fraction of the people whether rational people like it or not.

    And Like Kevin said, I bet if you hired a Private Eye, you'd find that each of these talking heads filled out every question on the census and had it in the mail the following day without a question.

    If Eric really does feel this way, he should bring in his unfilled census on the air for all to see.

  4. I think he saved himself by saying 'scared' rather than 'shot' at the door. Although he knows he intended to incite violence, we can't prove it.


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