The assassinations of conservative leader Charlie Kirk and Democratic lawmakers in Minnesota have triggered endorsements of violence and even calls for literal war on both the far right and far left. Fortunately, an overwhelming majority of Americans reject political violence, but all of us are in a fight to keep our diverse and boisterous brand of democracy alive. Doing so requires a renewed commitment to pluralism and a clear-headed recognition of the limits of government, especially when proposals entail using the criminal justice system to punish speech.
Pluralism has been called the lifeblood of a democracy like ours, in which being an American is not defined by race or religion. It requires learning about and accepting our differences, and embracing the principle that, regardless of them, every person is entitled to be protected by our Constitution and have a voice in how we’re governed. In contrast, many perpetrators of political violence rationalize their acts by denying the basic humanity of those with whom they disagree. They are willing to face the death penalty or life in prison in an attempt to force everyone to conform to their views.
If pluralism is the answer, how do we nurture it? Perhaps the best way is to keep the government out of the way. Unlike a single government system, civil society provides a vast palette of options for Americans to choose from. One person can go to a drag show while another goes to an evangelical church.
Yet the more sectors of our economy and personal lives that are subject to government control, the more ways in which we must act in unison instead of according to our own consciences. Of course, all Americans must live under the same civil and criminal laws, and we must collectively decide how core government institutions, such as the military, operate. But as adults, we can make different personal decisions in areas such as health care, entertainment, and family life. Limiting the scope of government promotes pluralism by maximizing the aspects of life in which we can agree to disagree, while still pursuing our own version of happiness as promised by the Declaration of Independence.
If government overreach places pluralism under pressure, the overuse of criminal law can crush it. No government instrument is more powerful than the criminal law because it puts every person’s liberty at risk. To ensure that mere thoughts are not punished, the traditional definition of crime requires not just a guilty mind—mens rea—but a bad action, or actus reus in Latin.
Just ten days before Kirk was assassinated, British comedian Graham Linehan was arrested in a London airport for posting reprehensible online comments about transgender people. Linehan was charged under British law with inciting violence for statements, such as one urging those who see transgender women in a “female-only space” to “make a scene, call the cops, and if all else fails, punch him in the balls.”
Though broadly threatening, such missives would not be illegal in the United States, even if someone read them and acted upon them. Why? Because, unlike the proverbial yelling of fire in a crowded movie theater, there is likely not a provable intent to incite an imminent and specific lawless action. That’s the legal standard long established here—and the correct one.
The same logic should apply to conservative calls to ban a left-wing group on the campus of the University of Texas at Austin, where, after Kirk’s assassination, group members shared a social media post depicting a crudely damaged piñata resembling President Trump.
Banning speech that is hateful or generally threatening is problematic because someone must decide what crosses the line, and that someone, too often, will be whichever political party controls the jurisdiction in question. This paves the way for a cycle of recriminations that shifts directions each time that government entity changes hands—a cycle that is particularly pernicious when it is not mere civil fines at stake but the prospect of locking up one’s political opponents.
While many European nations and Canada do subject hateful or vaguely threatening speech to sanctions, ours is a rough and tumble nation born of the Boston Tea Party and settled by Pilgrims, who were heretics of their time. Though other developed nations have advantages over the U.S. on certain important metrics such as gun violence, our shared inheritance as Americans isn’t to take orders from headquarters. It is perhaps not coincidental that Silicon Valley, which notoriously moves fast and breaks things, came to life in America, not in a society with more regulation and deference to authority.
Also, it is far from clear that bans on hateful or generally threatening speech are effective in achieving their goals. Charlie Kirk ominously warned that, “When people stop talking, bad stuff happens.” Indeed, studies from Europe and Africa suggest that hate speech bans fail to curb violence, push virulent content underground, and create backlash. In contrast, the full airing of controversial policy positions, public and legislative debates in which all voices are heard, and even-handed and consistent enforcement of existing restrictions can reduce the frequency and saliency of appeals to vigilantism, such as Linehan’s.
Of course, this doesn’t mean that existing American law provides no mechanism for limiting the form that speech takes. The U.S. Supreme Court has upheld time, place, and manner restrictions on speech, but only if they are content-neutral. For example, protests can be banned in the wee hours of the morning on residential streets, but such curbs cannot be limited to demonstrations of a particular ideological flavor, even if it is anti-Semitic, anti-Muslim, or otherwise hateful toward a specific group.
It’s deplorable that any American would celebrate Kirk’s murder or encourage others to avenge it by physically attacking left-wing leaders. Yet we must resist attempts to use this tragedy as a pretext for attempts to target political enemies of this or any administration under the guise of prosecuting “hate speech.” The First Amendment is a uniquely American bulwark against government overreach, and it cannot countenance broadening the scope of criminal law to punish speech that is abhorrent but falls short of an immediate incitement to commit a specific violent act.
If cracking down on speech isn’t the answer, what can we do, besides limiting the role of government so that in most areas we can each choose our own way to live?
First, we can encourage each other to embrace bridge-building, which is already gaining steam thanks to an array of non-profits that are helping people of different backgrounds and ideological stripes foster connections and, where possible, find common ground on issues of the day. We are part of that movement, joining with The Just Trust and Princeton University to bring together 14 leading organizations on the right and the left to develop a joint declaration of shared values on criminal justice.
Second, we can find agreement on the rule of law and democratic processes, if not policy outcomes. When there are free and fair elections and neutral and transparent procedures for making laws at all levels of government, Americans can feel a sense of procedural justice even as we differ on the substance of the enacted policies themselves.
Despite the intensity of reactions playing out across our nation in recent days, our war is not with our fellow Americans but a battle to defend pluralism so that we can peacefully coexist, even with our differences. This requires rejecting calls from both the left and right to silence speech, especially through criminal law. Instead, we must find common ground on democratic processes and the rule of law and stand firm against government overreach, allowing the full array of flowers in America’s garden to bloom in their own distinctive ways.
Marc A. Levin, Esq. and Khalil Cumberbatch co-lead the Centering Justice Initiative at the Council on Criminal Justice, where Levin is Chief Policy Counsel and Cumberbatch is Director of Engagement and Partnerships. They can be reached at mlevin@counciloncj.org and khalil@counciloncj.org
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