Donald Trump calls journalists who fail to fawn over him "the enemy of the people." New York Times media columnist Jim Rutenberg calls right-wing commentators who say things that offend him "the Incitement Industry." While the president's critics hear echoes of Stalin and Mao in his rhetoric, I hear echoes of Brandenburg v. Ohio in Rutenberg's.
Brandenburg is the 1969 case in which the Supreme Court held that it's unconstitutional to punish people for advocating illegal activity or the use of force "except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Rutenberg seems to be implying that hyperbolic, outlandish, and inaccurate statements by conservative provocateurs such as Jeanine Pirro, Dinesh D'Souza, and Ann Coulter meet that test, meaning that they could be punished or censored without violating the First Amendment.
Am I reading too much into Rutenberg's column? You tell me:
[D'Souza's movie Death of a Nation] makes the case that the Nazi platform was similar to that of today's Democratic Party. Prominent among its villains is George Soros, who was allegedly sent a pipe bomb by Cesar Sayoc Jr., who also is accused of sending similar packages to Hillary Clinton and [Barack] Obama….
The Incitement Industry can also be a driving force at Fox News, which has lately featured guests who have asserted without evidence that Mr. Soros financed the migrant caravan making its slow way toward the southern border of the United States. Someone who shared that view was the man charged with killing 11 congregants during a hate-driven shooting rampage at the Tree of Life synagogue in Pittsburgh.
The implication is clear enough that Rutenberg felt a need to add a disclaimer:
Violent acts, it should be noted, are the responsibility of those who commit them, and the perpetrators have various ideological motivations. But the grist for emotionally disturbed or just plain violent people has never seemed so readily available.
It's possible, of course, to believe that criminals should be held responsible for their own actions while also believing that people who incite others to violence, as Rutenberg suggests that D'Souza and Fox News have done, should be punished as well. Rutenberg stops short of saying that, instead advocating self-restraint by media gatekeepers:
Where is the line between falsehoods that may incite violence and good, old-fashioned American political hyperbole? And should book publishers and entertainment companies be more careful about the products they send out into the world in a tense sociopolitical atmosphere?
So no, Rutenberg is not saying the government should censor people like D'Souza, Pirro, and Coulter or arrest them for participating in the Incitement Industry. But neither did Trump say the journalists he condemns as enemies of the people should be executed. In both cases, the epithet is troubling because of the history to which it alludes. While it's sadly plausible that Trump was (at least initially) ignorant of the relevant history, it would be hard for a professional chronicler of the media to claim the same excuse.
None of the commentary Rutenberg cites would actually meet the Brandenburg test, which requires an intent to incite violence and a likelihood of succeeding right away. But Rutenberg, who says the Incitement Industry promoted the ideas that "provided a backdrop for mass murder in Pittsburgh and the recent pipe-bomb mailings to Barack Obama, the Clintons, George Soros and CNN," is charging his political opponents with complicity in homicidal violence. That's a pretty neat trick in a column bemoaning extreme rhetoric.
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