Incendiary language: merely provocative, or outright threatening?

Under an extraordinary law passed in 1985 in Germany, whoever, “publicly or in a meeting approves of, denies or downplays an act” committed by the Nazi regime “in a manner capable of disturbing the public peace” is imprisonable for up to five years.  Meaning, if in such a venue he has created the mere potential of a public outburst (for lack of better word), by “denying” the Holocaust, he is guilty of a serious felony.

Germany, for reasons too apparent, has taken this tack, and other nations have similar laws. Such a law could not succeed on First Amendment grounds in the United States, however, hopefully in futuro. Indeed, aggressive anti-Semitism that stems specifically from Holocaust denial, hasn’t seemed to manifest itself here as it has elsewhere in the world. It hasn’t been like “shouting ‘Fire!’ in a crowded theater and [thereby] causing panic” — the Constitutional articulation of incendiary conduct that would warrant a restriction on free speech rights as was framed by Justice Oliver Wendell Holmes.

Now, the goal of Germany in outlawing “denial” was not likely intended to inhibit or even discourage violent action by those sympathetic to a strategy of denial. Rather, recognizing that an individual’s solitary thoughts can’t effectively be outlawed, criminalizing “denial” is more a statement of national remorse for Germany’s past for being “Hitler’s Willing Executioners,” or at least sympathizers.  America, though, although suffering currently from an onslaught of anti-Semitism, hasn’t been confronted with the precise need for the dire action of criminalizing “speech” as has Europe.

No. We, here, face a partisan divide raising potential concern over incendiary language largely occasioned by the President’s willingness to provoke his outraged followers after his election loss.  It is actually since that loss which has not been accepted by his fervent loyalists, that truly incendiary language has been uttered by his closest supporters who surely recognize unmistakably the power of their remarks given their status as insiders in the President’s coterie.

Given Dr. Anthony Fauci having become a despised bete noir of the President, perhaps for having greatly eclipsed the President’s popularity, Steve Bannon proposed returning to Tudor times so that Dr. Fauci (and FBI Director Christopher Wray) might be beheaded, with their heads placed on pikes outside the White House “as a warning to federal bureaucrats, you either get with the program or you’re gone.”

Some weeks later, Trump’s lawyer Joseph DiGenova  — a former United States Attorney, no less —  proposed that Christopher Krebs, the U.S. Director of Cybersecurity and Infrastructure Security Agency (“CISA”) who proclaimed the 2020 election to be the most secure in American history (in opposition to what the President has directly maintained), “should be drawn and quartered. Taken at dawn and shot.”  Taken at dawn and shot!

These two protagonists, Bannon and DiGenova, truly close associates of the President, are sentient human beings. Surely, they, themselves, wouldn’t engage in physical violence against Fauci, Wray or Krebs. And, likely, they weren’t actually intending to promote the murder of individuals on the President’s enemies list du jour — however disturbingly incendiary their remarks were. And, probably, President Trump, during his presidential debate, wasn’t intending to provoke physical violence by unambiguously urging the Proud Boys to “stand back and stand by” — an expression commonly understood, notably by the Proud Boys, as endorsing the white supremacy they so urgently stand for.

Here’s the problem,  though. We live in a nation that has always cherished free speech – the Palmer Raids a hundred years ago being an important exception. We currently have a president who won’t simply walk off into the sunset when January 20 rolls around. He will undoubtedly continue to endlessly rile up his base with conspiracy thinking and corrosive talk. If there have actually been guardrails in place to discourage his more outlandish and vitriolic utterances over the past four years, it was because he stood nearby the presidential logo – a logo which is barely there now, and will soon be gone.   His has been and will continue to be a totally unconstrained bully pulpit with no foul lines on the playing field.  And, so, the incendiary commentary and threats (borderline or not) that he encourages against those he perceives as enemies will become more extreme.

If the worst happens – it surprises that it hasn’t already happened often — and someone is actually physically hurt or even killed as a result of conduct inspired by his callous indifference to the consequences of what he says, there will be other types of consequences. That is, some of those who have typically been proponents of unbridled free speech but are increasingly fearful that they have now become vulnerable to the wildly inappropriate remarks he and his most ardent loyalists make, may reverse course for their own protection. They will want to extend the criminal laws to actually criminalize the “provocative” as being “threatening.”

What will we do then? Will we allow the camel’s nose inside the tent of free speech?  And whose fault will that have been?

About the Author
Joel Cohen is a white-collar criminal defense lawyer at Stroock in New York and previously a prosecutor. He speaks and writes on law, ethics and policy (NY Law Journal, The Hill and Law & Crime). He teaches a course on "How Judges Decide" at Fordham Law School and Cardozo Law School. He has published “Truth Be Veiled,” “Blindfolds Off: Judges on How They Decide” and his latest book, "I Swear: The Meaning of an Oath," as well as works of Biblical fiction including “Moses: A Memoir.” Dale J. Degenshein assists in preparing the articles on this blog.The opinions expressed in this article are not necessarily those of the Stroock firm or its lawyers.