Shooting of Congresswoman Giffords and the limits of free speech

9 January 2011 by Adam Wagner

Gabrielle Giffords, a Democratic US congresswoman, is in a critical condition after being shot at a public meeting in Tucson, Arizona. Six other people died in the shooting, including a federal judge and a 9-year-old child. Eighteen others suffered gunshot wounds.

Little is known as yet about the alleged shooter, Jared Lee Loughner, save that he had a troubled past and may have mental health problems. It is also possible that there was a second person involved.

Two main issues arise from the shootings at present. First, the long-standing question as to whether the lax gun control laws in the United States, protected under the US Constitution, are indirectly responsible for the fairly regular occurrence of shooting sprees. In the UK, handguns were almost completely banned in 1997 following the Dunblane massacre, when 16 children and one adult were killed at a school in Scotland. In the United States, the US Supreme Court has recently upheld the right to bear arms under the Second Amendment to the US constitution.

A second issue, and one which is perhaps more relevant to the UK, is the limits of free speech. Whilst the shooter’s motives are not yet clear, many have quickly placed blame on the charged political atmosphere in Arizona in particular and the United States in general. In a news conference, local sheriff Clarence Dupnick repeatedly referred to the “vitriol” that had characterised local political discourse, and said that Arizona had become a “mecca for prejudice and bigotry”.

These warnings are not new. Arizona has been the centre of a tense debate over immigration controls. The judge who was killed was responsible for a much-criticsed decision to allow a compensation case for illegal immigrants to proceed, and received death threats following the ruling. And Gifford’s office had recently been targeted by vandals who broke widows, following which the congresswoman reminded the public that her office had been placed in crosshairs on a map produced by Sarah Palin, a leader in the Tea Party movement. Palin also tweeted for her supporters not to retreat, but “RELOAD!”.

And the problem is not confined to Arizona. Frank Rich, a New York Times columnist, wrote in October that the nation was in “denial” about “the level of rage still coursing, sometimes violently, through our national bloodstream”. The radical right’s anger is, Rich argued, “becoming less focused, more free-floating — more likely to be aimed at “government” in general, whatever the location or officials in charge”. And

Not for the first time in history — and not just American history — fear itself is at the root of a rabid outbreak of populist rage against government, minorities and conspiratorial “elites.”

What is to be done about violent “rage”, publicly expressed? Political rhetoric in the United States is often more offensive and charged than in the UK, due in part to the more robust freedom of expression protections under the US Constitution. Under English law, freedom of expression is protected under Article 10 of the European Convention.

For example, political expression is restricted by criminal laws against hate speech. As explained by the Inforrm Blog in the context of a US preacher who threatened to burn Muslim holy books:

the threatened conduct would plainly have been criminal. The Public Order Act 1986 criminalises the use of threatening, abusive or insulting words or behaviour which is likely to cause, in general terms, public disorder. Section 5 prohibits disorderly behaviour which causes harassment, alarm or distress. A criminal offence will be committed under that section if words or behaviour that are threatening, abusive or insulting are used or any such material displayed ‘within the hearing of a person likely to be caused harassment, alarm or distress’.

By contrast, despite the US Bill of Rights’ 219 years on the statute books, there remains only a very limited list of forms of expression which are not protected by the First Amendment: obscenity, child pornography, speech that incites imminent danger, and regulation of commercial speech such as advertising. Although the United States does have laws against hate speech, as compared to the relatively low bar of the “likely to cause” English test, in the US speech must incite imminent violence. This is difficult to prove and as such has led to few successful prosecutions.

It is one thing banning “hate” speech in order to prevent violence, it is quite another proving that the former caused the latter. One of the challenges of the debate over political free speech is that it is very difficult to say after a violent event that it was “caused”, particularly in the legal sense, by public rhetoric, especially if the offending words were aimed at the population rather than a particular violent perpetrator. Hence the constant references to a “febrile” or “charged” political atmosphere by commentators on the recent tragedy, bur less individual blame.

The English law therefore works on the assumption that such conduct can be preempted by not allowing such an atmosphere to develop in the first place.

There are other ways that political speech is constrained in the UK. The English courts recently rendered void a general election victory for a politician who, amongst other things, made “personal” attacks on an opponent’s views on immigration. The court ruled that a political position “can go beyond being a statement about his political position and become a statement about the personal character or conduct of a candidate”. It is almost impossible to imagine the US courts challenging the rhetoric of a politician in the same way.

But the British and US approaches may not be directly comparable. The United States, for a number of reasons – political, religious and historical – often demonstrates a highly polarised political system. The two-party system has perhaps encouraged this. Coalition politics such that we currently have here would be an alien concept across the Atlantic.

And free speech protections are fairly strong here even in light of the rarely used hate speech powers: the UK has been criticised for the spread of radical Islamism in “Londonistan”, and this problem has arisen in part as a result of a tradition of permissive multiculturalism which encourages free political and religious expression.

Moreover, it is possible that it is the lax gun control laws, which allow easy access to firearms, rather than free speech protections, which make such tragedies possible.

Of course, the shooter may have been motivated less by politics and more by his own internal demons. And there is an understandable public need to attribute killings which would otherwise be senseless to explainable, if not excusable, motives. But, as Sheriff Dupnick said, people with mental issues “are especially susceptible to vitriol”. There may be free speech, he said, but “it is not without consequences”.

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