Urging the government to assassinate someone vs. urging otherstodo that

[Volokh, Eugene]

	I agree with Sandy that Robertson and Debs are hardly "puny
anonymities."  Had Robertson's speech been likely to be understood by
his listeners as calling for them to try to assassinate a fairly heavily
guarded world leader, I think it would have easily been punishable under
Debs (though I agree not under Brandenburg).  But given the substantial
unlikelihood that his speech would have been so understood -- and the
far greater likelihood that Debs' speech would have been so understood
-- it seems to me that it wouldn't have been punishable even under Debs.
Outlawing speech that urges the government to exercise its military
power in certain ways strikes me as a very substantial restriction, even
beyond what Debs and Schenck (wrongly) tolerated.

	It seems to me quite clear that advocacy of assassinating the
President -- imagine a statement like that in Rankin v. McPherson -- is
constitutionally protected, unless it fits within Brandenburg incitement
or is intended to convey a threat to commit the act oneself (or through
one's confederates).  Naturally, the speaker might get an unpleasant
visit from the Secret Service, who are trying to figure out if he's
actually threatening to do it himself; but I don't think that he could
be prosecuted for it.

	Eugene

> -----Original Message-----
> From: Sanford Levinson [mailto:SLevinson at law.utexas.edu] 
> Sent: Tuesday, August 23, 2005 1:48 PM
> To: Volokh, Eugene; ConLaw Prof
> Subject: RE: Urging the government to assassinate someone vs. 
> urging otherstodo that
> 
> 
> As to Debs-Schenck-Abrams, I think they are best analyzed as 
> "bad tendency" cases rather than any serious application of a 
> "clear and present danger" test.  But of the three, only Debs 
> could conceivably have come close to passing such a test, 
> precisely because a lot of people venerated him and took his 
> arguments very seriously.  And recall Hand's Dennis test.  If 
> one multipliles the probability by the gravity of the harm, 
> then even a very slight probability that some devotee of Pat 
> Robertson (and I suspect that he could get more than the 
> roughly million votes for president that Debs got in 1912) 
> would be moved to act (in disgust at a government that 
> wouldn't follow Robertson's "sage advice"), multiplied by the 
> gravity of the harm that would follow an assassination of 
> Chavez by an American citizen would make Robertson at least 
> as dangerous as the communists who went to jail in Dennis 
> (under a "clear and present danger test," to be sure, but far 
> more comprehensible under the Hand test).
> 
> Both Eugene and I agree, I take it, that free societies have 
> to run lots of risks, and allowing awful speech (and the 
> possibility that someone might take action based on them) is 
> one of them.  But I think it is a mistake to turn Robertson 
> into the equivalent of a "puny anonymity" or discount the 
> probability that someone in this great country of ours might 
> "misunderstand" (?) Robertson to be using "we" in some sense 
> other than the legitimate US government.  I'm curious, 
> incidentally, about Eugene's present views about the 
> legitimacy of criminizalizing the advocacy of assassinating 
> the US president unless it can pass the Brandenburg test.  
> 
> sandy 
> 
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
> Sent: Tuesday, August 23, 2005 3:39 PM
> To: ConLaw Prof
> Subject: RE: Urging the government to assassinate someone vs. 
> urging otherstodo that
> 
> 	It seems to me quite likely that someone listening to 
> Debs' speech might be moved to refuse to obey the draft laws. 
>  It strikes me as vastly less likely that Robertson's 
> listeners would say "Oh, well, if the government doesn't 
> assassinate Chavez, I think I'll just go and try to kill that 
> likely pretty heavily guarded foreign political leader 
> myself, because that would be in America's interest."  I 
> don't think Robertson is calling for this (neither overtly 
> nor subtly), nor does it seem particularly likely.  
> 
> 	Granted, the magnitude of the harm from a single 
> assassination attempt here would be much greater than the 
> magnitude of the harm from a single refusal to obey the draft 
> laws.  But it seems to me that the likelihood is so much less 
> that I rather doubt that this is even in Schenck/Debs land -- 
> even under the relaxed Schenck/Debs standard, I just don't 
> see this creating a clear and present danger that one of 
> Robertson's listeners would try to assassinate Chavez.
> 
> 	Eugene
> 
> Sandy Levinson writes:
> 
> > -----Original Message-----
> > From: Sanford Levinson [mailto:SLevinson at law.utexas.edu]
> > Sent: Tuesday, August 23, 2005 12:28 PM
> > To: Volokh, Eugene; ConLaw Prof
> > Subject: RE: Urging the government to assassinate someone vs.
> > urging others todo that
> > 
> > 
> >  For what it's worth (and I'm not sure the amount), 
> Robertson is most
> > definitely not, in Holmes's language, a "puny anonymity," 
> which means,
> 
> > among other things, that some Americans may believe that if our
> > gutless government won't do what he says, then they should 
> step in and
> 
> > do it themselves.
> > I.e., his speech is at least as dangerous as that of Eugene V. Debs,
> > which was, empirically, more dangerous than that of the 
> hapless Jacob 
> > Schenck of (I don't even know his first
> > name) Abrams.  Perhaps this is an occasion for the 
> President to give a
> 
> > lecture on civil liberties and note that what is great about our
> > country is that we allow all sorts of hateful and objectionable 
> > speech, including advocating assassination of the 
> presidents of other 
> > countries.  I.e., Brandenburg has certainly supplanted Debs, thank 
> > goodness.  (So the ultimate question is whether Robertson would be 
> > protected if he advocated the assassination of our own 
> President and, 
> > if not, why not.)
> > 
> > sandy
> > 
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