Criminal Responsibility for Inflammatory Rhetoric?
posted by Susan Kuo
Many thanks to Dave Hoffman for inviting me to guest blog, and please accept my apologies, folks, for being so slow with my first post. As one of my colleagues would say, I’ve had squirrel brain for the past week.
The MSM talking heads have been chattering a great deal this week about the McCain Campaign’s go-for-broke strategy of depicting Senator Obama as the BFF of terrorists and anti-American extremists. GOP rally goers have been receptive to these tactics, responding with cries of “terrorist!” and “treason!” and “kill him!” at this week’s McCain-Palin pep rallies.
The stated endgame seems on the up-and-up: Senator McCain says that he is skeptical of Obama’s ability to tell the truth and that Obama is not being forthright about his affiliations with slithy toves like William Ayers and Jeremiah Wright. Governor Palin says that she questions his judgment because of these relationships. A candidate’s propensity for truthfulness and judgment ought to be fair game in a political war.
But that’s not what has the media (and me) atwitter.
I’m more interested in the unstated goals of this strategy. In particular, I’m curious about the campaign’s desire to paint Obama not only as a tractor beam of evil, but also as the embodiment of evil. A couple of McCain’s surrogates have even invoked Obama’s middle name in what can only be an attempt to portray Obama as a terrorist himself. Sure, negative portrayals of the other party’s candidates are standard fare when it comes to election season hijinks, but this particular round of character assassination has a discordant sound to it – like the soundtrack for “There Will Be Blood.” The McCain camp seems to be peddling fear, hate, and outrage to an audience that appears highly susceptible to this message.
What if, after drinking the Kool-Aid of campaign rhetoric, a rabid supporter sought to perpetrate harm on another candidate? Should the fear-mongering candidate (or a campaign strategist or surrogate) bear any responsibility for the bad acts of a fanatical groupie?
Under the Model Penal Code, one can be liable as an accomplice for another’s bad acts if the prohibited result was her conscious object. This standard might be hard to satisfy in my imagined scenario, but some criminal statutes are broader and could allow liability to attach based on one’s knowledge that, to a practical certainty, one’s conduct will assist in bringing about the prohibited result. Because knowledge is a less culpable mental state than purpose, however, courts might require something in addition to the knowledge – something like a stake in the venture. Would an election victory suffice as a stake? On the other hand, if the accused knows that, as a result of her conduct, the prohibited result is practically certain to occur, the serious nature of the intended crime should, arguably, be enough. No extra something should be required.
Hopefully, no persons or other animals will be harmed in the making of the next President. But, by creating an atmosphere that fosters violent and dangerous sentiments, the McCain campaign has increased the risk of injury to its opponents. For this reason, might McCain and Palin have more than an ethical responsibility to address and defuse these attitudes? Could they have a legal duty to engage in some straight talk with their supporters – to dial back the inflammatory rhetoric and to denounce publically these sentiments?