Political elites' speech harshly critical of their rivals
VOLOKH at law.ucla.edu
Mon Oct 13 13:39:58 PDT 2008
I appreciate Miguel's concern, but let me offer a few thoughts:
1. I take it that the concern isn't about "incitement" in the
legal Brandenburg sense.
2. Even if one is referring to speech that has some tendency to
lead others to take extra-legal measures, I'm pretty skeptical that
anything we've seen really fits into that category as an empirical
3. But if we do think that claiming that "the other side is
disloyal to the system" has some appreciable chance of causing others
"to take extra-legal measures," wouldn't other things have a comparable
chance? Consider, for instance,
a. Claiming that the other side's political victory was
b. Claiming that the other side's impeachment plans are a form
of attempted "coup."
c. Claiming that the other side is morally tantamount to Nazis
or fascists, either expressly or by using terms such as "brown shirts."
How should we treat these sorts of harsh criticisms of one's
Miguel Schor writes:
One of the interesting aspects of these posts is how responsive they
have been to the politics of the issues raised by Professor Curtis and
how unresponsive they have largely been to the constitutional issues he
raised. The question, after all, is whether political discourse can
contribute to a number of democratic pathologies, not the least of which
is democratic breakdown. Constitutions are designed, among other
things, to cabin political disagreements within certain channels. When
elites claim that the other side is disloyal to the system, it is an
incitement to take extra-legal measures. That has been less of a
problem in the US than in other polities but we are kidding ourselves if
we think that we are somehow incapable of screwing up our republic.
Along those lines, the following NYT article is more than a little
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