There is no such thing as an absolute, unbounded right. Free speech ends at libel and slander; you can’t carry a machine gun through Macy’s; and you’re not allowed to stone people, no matter what your book might say. Even so, free speech rights in the United States are expansive, and it’s absolutely possible for media personalities, and the media in general, to get away with statements that would elsewhere be subject to prosecution, even in countries with a tradition of liberal government. But Tucker Carlson has stepped over a line, and whether or not what he’s done is still acceptable, it’s definitely a real problem.
When the Supreme Court ruled in Brandenburg v. Ohio to dismiss charges against a Ku Klux Klan (KKK) leader calling for “revengeance” against Blacks, Jews, and their supporters, it overturned part of the famous case in which Justice Oliver Wendell Holmes first said that "falsely shouting fire in a theatre and causing a panic" went beyond the limits of protected speech. The Brandenburg ruling greatly tightened up the rules around what words amounted to “incitement.” After that ruling, speech didn’t just have to encourage the commission of lawless action, it had to be likely to cause such action in the very near term. Even through the KKK leader was speaking to a group of armed men and telling them to take their revenge, it didn’t meet the new standard. Under that standard, it would require something like pointing at a person present and saying, “Shoot that man.”
With that limit in mind, it would seem almost impossible for someone in the media to reach the level that violates protected speech. That’s especially true when it comes to political speech, which is given even more protection than commercial speech or ordinary discourse.
But even given those boundaries, what Carlson has been doing when it comes to the pandemic clearly meets the standard of public endangerment or culpable negligence. And there’s a good argument that he should be prosecuted.
On Monday, Carlson devoted a large portion of his Fox News show to encouraging the harassment of people wearing masks. In this segment, Carlson walked through a series of lies to claim that: most liberals are crazy, the only reason to wear a mask is because you’re crazy, and that it’s the job of right-thinking Americans to harass these crazy people until they shape up.
Carlson started his tirade with statements clearly tuned to his favorite themes: right-wing victimhood and turning back the clock to the pre-Civil Rights era.
All of that is ugly, and laden with dog whistles and calls for taking action against the “aggression” of other people doing something that not only causes no harm, but is a demonstrable public good. However, that’s just the start. Following this, Carlson had a particular message for how to handle children wearing masks.
On the one hand, what Carlson is doing here is aimed not at an individual person, but at a group of people: those who wear masks. And he is speaking not to an immediate action, but to a broader context of whenever a certain behavior is encountered. So it might not appear to meet the strict guidelines of Brandenburg when it comes to speech that equals incitement. However, Carlson is calling not for some vague notion of “revengance,” but for very specific actions that would not only cause harm to both parents and children, but also damage the proper operation of both police and child services.
Carlson is providing a specific situation—one he knows is occurring because it meets the current guidelines of the Centers for Disease Control and Prevention (CDC)—and telling people to react as if they are seeing child abuse. In turn he gives a specific solution, one that calls for harassment, misuse of public facilities, and actual child abuse. That specificity makes this a very different form of language than that protected under Brandenburg.
After all, Carlson could just as easily be encouraging people to harass someone for wearing a hijab, or telling his viewers to order Black people to get off the sidewalk because their presence “makes them uncomfortable,” or encouraging people to call the police if they don’t think someone’s child is dressed “gender-appropriately” in Walmart. None of those statements might meet the definition of calling for imminent violence. However, they are clear and specific calls to cause harassment and assault in response to specific situations. It’s unclear that any of these still qualify as protected speech.
As for the argument that Carlson’s statements deserve special protection because they are political speech, they’re not. They’re politicized speech, and that’s something very, very different. Carlson—along with a large portion of the right—has chosen to take scientific facts and medical recommendations and incorporate them into false claims. A virus is not political. A mask is not political. Defining this as political speech casts a wide net that invites further abuse.
If Carlson were using his time to say “take off your masks and refuse to wear them as a sign of your opposition to the government,” that clearly is protected speech. Yes, he’s endangering the lives of his viewers, and he’s arguably endangering others indirectly. But every person who ever encouraged someone to sit down at a lunch counter or burn a draft card knew they were asking that person to place themselves in danger. Carlson telling his viewers to remove their own masks may be foolish, and it may achieve no legitimate political goal, but it’s foolishness that can at least pretend to a tradition of protected speech. However, when it comes to calling for people to specifically harass those who are wearing masks in an attempt to protect their health, the health of their families, and the health of the nation, that tradition is much, much harder to find.
The American tradition of strong protection of free speech is a vital part of this nation. The robust defense of free speech is vital, ongoing, and worthy of support at every turn. As someone who daily sits down to write text that is regularly highly political and more than occasionally vituperative when it comes to calling out political opponents, no one could be more grateful for how broadly and powerfully the U.S. courts have moved to guard speech. No one has to look very hard to find instances of what it’s like when a government doesn’t maintain those rights. Or how far governments can go when they determine that it’s more important to protect statements from the government than citizens.
But what Carlson—and others like him—are doing when they encourage their viewers to take aggressive action toward American citizens who are doing their best to safeguard the lives of their families and others … it’s simply unclear whether this is protected speech. It’s unclear that it should be. And if this statement doesn’t cross the line, what does?
Ugly as Carlson’s statements may be, there’s little doubt that they’ve been pre-screened by the attorneys at Fox News. They’re likely confident that, even if someone should suffer the exact abuse that Carlson specified, there would be little chance of those victims having standing to sue Carlson directly. The chance of any public prosecutor seeking charges of endangerment or culpable negligence are so vanishingly small as to be safely ignored. Still, there can be no doubt that with these statements, the dial on the stove has been turned up another notch, bringing the frog ever closer to boil. There will be a point at which courts are brought in to rule on statements such as this. When the Supreme Court is eventually forced to rule again on just what kind of speech is protected, none of us may like the results.
When the Supreme Court ruled in Brandenburg v. Ohio to dismiss charges against a Ku Klux Klan (KKK) leader calling for “revengeance” against Blacks, Jews, and their supporters, it overturned part of the famous case in which Justice Oliver Wendell Holmes first said that "falsely shouting fire in a theatre and causing a panic" went beyond the limits of protected speech. The Brandenburg ruling greatly tightened up the rules around what words amounted to “incitement.” After that ruling, speech didn’t just have to encourage the commission of lawless action, it had to be likely to cause such action in the very near term. Even through the KKK leader was speaking to a group of armed men and telling them to take their revenge, it didn’t meet the new standard. Under that standard, it would require something like pointing at a person present and saying, “Shoot that man.”
With that limit in mind, it would seem almost impossible for someone in the media to reach the level that violates protected speech. That’s especially true when it comes to political speech, which is given even more protection than commercial speech or ordinary discourse.
But even given those boundaries, what Carlson has been doing when it comes to the pandemic clearly meets the standard of public endangerment or culpable negligence. And there’s a good argument that he should be prosecuted.
On Monday, Carlson devoted a large portion of his Fox News show to encouraging the harassment of people wearing masks. In this segment, Carlson walked through a series of lies to claim that: most liberals are crazy, the only reason to wear a mask is because you’re crazy, and that it’s the job of right-thinking Americans to harass these crazy people until they shape up.
Carlson started his tirade with statements clearly tuned to his favorite themes: right-wing victimhood and turning back the clock to the pre-Civil Rights era.
All of that is ugly, and laden with dog whistles and calls for taking action against the “aggression” of other people doing something that not only causes no harm, but is a demonstrable public good. However, that’s just the start. Following this, Carlson had a particular message for how to handle children wearing masks.
On the one hand, what Carlson is doing here is aimed not at an individual person, but at a group of people: those who wear masks. And he is speaking not to an immediate action, but to a broader context of whenever a certain behavior is encountered. So it might not appear to meet the strict guidelines of Brandenburg when it comes to speech that equals incitement. However, Carlson is calling not for some vague notion of “revengance,” but for very specific actions that would not only cause harm to both parents and children, but also damage the proper operation of both police and child services.
Carlson is providing a specific situation—one he knows is occurring because it meets the current guidelines of the Centers for Disease Control and Prevention (CDC)—and telling people to react as if they are seeing child abuse. In turn he gives a specific solution, one that calls for harassment, misuse of public facilities, and actual child abuse. That specificity makes this a very different form of language than that protected under Brandenburg.
After all, Carlson could just as easily be encouraging people to harass someone for wearing a hijab, or telling his viewers to order Black people to get off the sidewalk because their presence “makes them uncomfortable,” or encouraging people to call the police if they don’t think someone’s child is dressed “gender-appropriately” in Walmart. None of those statements might meet the definition of calling for imminent violence. However, they are clear and specific calls to cause harassment and assault in response to specific situations. It’s unclear that any of these still qualify as protected speech.
As for the argument that Carlson’s statements deserve special protection because they are political speech, they’re not. They’re politicized speech, and that’s something very, very different. Carlson—along with a large portion of the right—has chosen to take scientific facts and medical recommendations and incorporate them into false claims. A virus is not political. A mask is not political. Defining this as political speech casts a wide net that invites further abuse.
If Carlson were using his time to say “take off your masks and refuse to wear them as a sign of your opposition to the government,” that clearly is protected speech. Yes, he’s endangering the lives of his viewers, and he’s arguably endangering others indirectly. But every person who ever encouraged someone to sit down at a lunch counter or burn a draft card knew they were asking that person to place themselves in danger. Carlson telling his viewers to remove their own masks may be foolish, and it may achieve no legitimate political goal, but it’s foolishness that can at least pretend to a tradition of protected speech. However, when it comes to calling for people to specifically harass those who are wearing masks in an attempt to protect their health, the health of their families, and the health of the nation, that tradition is much, much harder to find.
The American tradition of strong protection of free speech is a vital part of this nation. The robust defense of free speech is vital, ongoing, and worthy of support at every turn. As someone who daily sits down to write text that is regularly highly political and more than occasionally vituperative when it comes to calling out political opponents, no one could be more grateful for how broadly and powerfully the U.S. courts have moved to guard speech. No one has to look very hard to find instances of what it’s like when a government doesn’t maintain those rights. Or how far governments can go when they determine that it’s more important to protect statements from the government than citizens.
But what Carlson—and others like him—are doing when they encourage their viewers to take aggressive action toward American citizens who are doing their best to safeguard the lives of their families and others … it’s simply unclear whether this is protected speech. It’s unclear that it should be. And if this statement doesn’t cross the line, what does?
Ugly as Carlson’s statements may be, there’s little doubt that they’ve been pre-screened by the attorneys at Fox News. They’re likely confident that, even if someone should suffer the exact abuse that Carlson specified, there would be little chance of those victims having standing to sue Carlson directly. The chance of any public prosecutor seeking charges of endangerment or culpable negligence are so vanishingly small as to be safely ignored. Still, there can be no doubt that with these statements, the dial on the stove has been turned up another notch, bringing the frog ever closer to boil. There will be a point at which courts are brought in to rule on statements such as this. When the Supreme Court is eventually forced to rule again on just what kind of speech is protected, none of us may like the results.