There has been considerable discussion this week about whether or not all of the inflammatory rhetoric that exists today in our media and in our politics might have contributed to the shooting in Colorado last weekend. Certainly it was not the only factor, but even if happened to play no actual role in this particular event, we all know that it had that potential and that it could play a central role in some similar future event. This inflammatory rhetoric is a problem for our country and a threat to the safety of all of us, not just to our political leaders.
Of course doing anything about the problem seems problematic due to the guarantees of our Constitution, and particularly by its First Amendment. We want to not only preserve the principles of free speech and freedom of assembly, we should all want to strengthen these rights. However, our courts have found that freedom of speech is not absolute and they have carved out exceptions. We are not allowed the freedom of fraudulent misrepresentation in business dealings and we are not allowed to incite violence. We are not allowed to defame others with the interesting exception of comments about public figures.
It would seem that another exception could be carved out by the courts, or preferably through legislation, that these same public figures have a special responsibility when it comes to incendiary speech. Because public figures can expect a large audience for their comments, the usual limitation that incendiary speech must be for immediate violence should be relaxed. In the case of public figures any call for violence or especially for killing should be forbidden and punishable by prison sentence. As noted before, public figures are already recognized as a special class when it comes to our free speech rights.
Our existing prohibition on incendiary speech was developed before the days of our mass media and it had in mind someone inciting a gathered crowd to violence. Today there is a new and every bit as serious danger of a prominent personality inciting violence that will only take form weeks or months later, possibly by a deranged individual. This is not unlike someone placing a bomb that will go off at some future time in some unknown location. It is not at all improper to regard either behavior as criminal.