Happy belated birthday to our ninth president! This month marks his 238th birthday. In honor of this milestone, I thought I’d offer some background about our former, revered leader. He was the son of a signer of the Declaration of Independence. Well educated, he elected to pursue a career in the army instead of a professional field. He became a war hero thereafter by getting the upper hand against Tecumseh’s brother at the Battle of Tippecanoe in 1811, and he parlayed his army experience into a political career. Believing that “wretched savages” should not stand in the way of white civilization, he endeavored to wrest land from the Native Americans by force or coercion. As the first governor of Indiana, he would buy off chiefs to get them to sign treaties forfeiting lands from their tribes, and when this didn’t work, he would just bring in troops and take what he wanted. He was responsible for wiping out the Indians assembled at Prophetstown (Indiana) as part of Tecumseh’s War. Harrison’s men — who greatly outnumbered the Native Americans collected — attacked in Tecumseh’s absence and burned out the town after besting the leaderless group. Despite these aggressive actions, Harrison was not a commanding leader when dealing in politics (for white people), and belying his pedigree and background, he ran for president on a platform reliant on symbols of humble origins to represent him. Souvenirs of log cabins and cider barrels were the paraphernalia of his campaign (though they bore no connection to his actual lifestyle). Empty slogans like “Tippecanoe and Tyler Too” substituted for any substantive stand on issues (except, of course, decimating the Indian population). In 1840, he was elected by a landslide (234 electors to 60) by voters less interested in substance than symbolism and eager to elect a war hero to the office. Disappointingly, the great man died in office from pneumonia a month after his inauguration. Hence, the beginning of the great what-if that has become legend in American politics.
What? You aren’t in the least bit interested in celebrating the 238th birthday of our ninth best man? He’s dead and gone you say? Well, I noted all the hullabaloo lately about Ronald Reagan’s would-be 100th birthday and inferred that this would be a topic of great interest too. Obviously, there is nothing more pressing going on in our society that we can’t pause to celebrate non-events concerning our gone but not forgotten leaders. As a historian, I was glad to oblige. I figured those who worship the Gipper would be equally eager to celebrate Old Tippecanoe. Was I wrong? Are you not still engaged in heated debates about what our nation would have become if only Old Tippecanoe had served out his term?
I don’t pretend to understand the hero-worship that some have for our presidents — and Reagan in particular. Truthfully, in another 138 years, Americans may remember him like we do Harrison today. Maybe not. Perhaps he will always have a cult of followers and be remembered as one of the greats, like Lincoln or Roosevelt (either one). In such cases, the myth becomes so much greater than the man that they are hardly recognizable and much of the historian’s work then is cutting through the folklore to get to the reality. The public, of course, is not interested in that. They merely seek venues for engaging in their adoration — even to the point of marking non-events. Reagan is dead. He is not 100. The anniversary of his birth, in truth, means as much as the 238th of Harrison. Celebrating the day does nothing substantive for us in improving the quality of our lives or contributing to the world we live in. It does nothing to create new, insightful government policy, real civic activity, or even action that translates into care for our fellow citizens. These events are not organized around feeding the poor or solving the crises of the 21st century. They are a clinging to the past and empty pseudo-patriotic shows of ancestor worship. But much like the slogans of Harrison’s election, these empty, symbolic acts allow for easy celebrations of style in lieu of the hard work of dealing in real, substantive policy. This is patriotism-lite, and nothing is more American than that, as Harrison’s career and the Reagan hubbub together demonstrate.
(FYI, until Reagan was elected, Harrison held the record for being our oldest president.)
I so enjoy all the ironies that mark American life and culture. I guess it’s unavoidable in a country founded on ideals rather than realities or simple geography. Our races, languages, and cultures do not unite us; our aspirations do. Unfortunately, the actuality doesn’t always match the ideology, and therein lie the unexpected twists.
One of the promises of American democracy is, of course, freedom of speech, and of late, the impact of our words have been on our minds. The heated rhetoric of our political discourse — a phrase that has been commonly overused in the last month and which greatly romanticizes the actual dialogue — has itself come under fire. After a young, angry, white man attempted to assassinate Congresswoman Gabrielle Giffords and instead murdered some bystanders in the line of fire, people questioned what role — if any — militant imagery and rhetoric played in inciting his action. On the one side, there were calls for more tempered language in our political conversations; on the other, there was a rejection of the conclusion that words incite actions and an insistence that this was simply the work of a madman. In particular, Sarah Palin became a key figure in this debate, since her discourse is a prime example of the rhetoric being criticized and because she previously used an image of Gifford’s district as a target caught in a gun sight in her political postings. Critics suggested she was inciting to violence; Palin accused them of making a false allegation against her for political gain. She said they were discrediting her by accusing her of being falsely responsible for the actions of another. She defended her words as protected speech and sought to separate her words from his actions. In essence, she wanted to argue that words would not incite to violence and action is an individual responsibility.
The problem with that notion is that there is a long-held legal precept (and common sense belief) that words do incite. Even in America, the right to free speech is not absolute. The Supreme Court decided this was so a long time ago. During World War I, a man named Charles Schenck, who opposed the draft and advocated for its abolishment, was charged with violating the Espionage Act. Schenck maintained that this was an infringement on his right to free speech and the case went to the high court. The justices ruled that speech was not protected if it created a clear and present danger to others. The example they cited was that one could not yell “Fire!” in a crowded theater, which would cause a panic and lead to harm to the people present. In the same year, the Court reviewed Eugene Debs’ arrest and conviction under the same law for promoting socialism and advocating against war. This time, the Supreme Court ruled that Debs went too far simply because he would impede the government’s ability to recruit during a time of war — even though his words did not create a clear and present danger. Six years later, the Court ruled against another leftist activist — anarchist Benjamin Gitlow, who published some pro-communist writings (he was publisher, not author) that applauded the Russian Revolution. Gitlow argued that the pro-communist and revolutionary statements were abstract ideas rather than incitements, but the justices ruled that because the essays did not push for legal changes to the system as opposed to “mass strikes and revolutionary action” they created a threat to the government and the speech was not protected by the Constitution then. These legal rulings of the early twentieth century generally limited what one could say, and in particular if it suggested a threat to others or the government.
Later, in 1957, a new Court — Earl Warren’s — decided that to lose its protection, speech had to actually incite to action instead of just advocate ideas that violate laws designed to restrict anti-government agitation. Thus, the fourteen members of the Communist Party rounded up and prosecuted by the government (including organizer Oleta Yates, whose name the case bears) were absolved; their beliefs were not prosecutable — there had to be activity attached for that. In the 1960′s, the permissiveness toward anti-government sentiment was broadened so that free speech covered burning flags and draft cards and advocating against the draft just as Schenck had done. The Court then decided that the government couldn’t infringe on your right to advocate for using force or violating the law in protest unless doing so would incite “imminent lawless action.” As a result, today’s Tea Party advocates with their separatist talk and “Don’t Tread on Me” t-shirts are as protected as the left wing predecessors who paved the way for them. It is because of those liberals and their stubborn tenacity that Sarah Palin can post her cross hairs over Gifford’s district without fearing police prosecution. She owes the radical left a big thank you for this, because they were largely responsible for pushing the boundaries of accepted free speech. (There’s that irony!) I’m sure she is immensely grateful — although she did not mention it in her Facebook post.
This is not to say that Palin and her ilk on the right or left have a free pass then. As noted, freedom of speech is still not absolute. The question now — and this will not be answered for some time — is whether or not Palin’s or others’ speech actually did affect the accused assassin. Is there proof that he did, in fact, listen to their talks and read their postings? If so, how did he take statements like “don’t retreat, reload”? Did he hear this as an actual call for violence? Is this what prompted him to take a gun to a public place and open fire indiscriminately? In large part, only the assassin can answer these questions — or the evidence gathered from his home and computer may speak for him on this. We will certainly not be clear on his motives until his trial is underway. Only then will we be able to weigh the actual evidence and determine whether or not pundits’ careless, mean-spirited, or hateful words prompted him to imminent lawless action. We do not yet know. And, thus, Palin cannot just yet claim malicious libel.
Of course, even if she and others like her did serve as Jared Loughner’s inspiration, Palin’s response argues that one can’t be responsible for the way others act. If they twist your words or make them into encouragement to actions not intended, can the speaker be held responsible there? To be culpable, one must surely have some intent. How to prove that Palin, et al’s words were not just inartful or careless instead of encouragement to a specific act? It would seem almost impossible to prove; however, the courts have already upheld civil liability against those publishing information that abetted criminal conduct. In 1997, the publisher of a how-to on committing murder was liable when someone copied the instructions to do just that. The Supreme Court approved the prosecution. The ruling there was that there is no constitutional protection for speech that aids and abets criminal conduct. Whether or not this applies to Palin or any others in this specific incident is yet to be decided. Whether or not Palin’s cross hairs were taken literally or encouraged Loughner to shoot Giffords requires careful review of facts.
Despite the seriousness of the shooting and the accusations, in the end, the legal repercussions for politicos really are limited. Ultimately, the outcome touches on civil liability instead of extensive jail time or more severe punishment. None of the talking heads would likely get prison sentences if such was the case. Theirs would definitely be the lesser culpability; Loughner’s action was far more reprehensible — and criminal. Although pundits could face prohibitive financial damages, they would not have to fear the loss of their freedom. What is almost certain though is that conservative pundits would have a whole new impetus then to advocate for tort reform. And, liberal activists might even join them in that — such is the state of our current “political conversation.” Those strange bedfellows would most assuredly produce more political irony for my appreciation then.