On Sarah Palin and inspiration

This response to a friend's blog re-post got too long for the comment box. There are a few questions to explore:

1. Was Sarah Palin responsible in any way for the Giffords shooting?
2. What about her free speech rights?
3. How does this compare to Mark David Chapman reading Catcher in the Rye?

Was Sarah Palin responsible in any way for the Giffords shooting?

18 U.S.C § 2(a), which is an example of a statute criminalizing aiding and abetting a crime, reads as follows: "Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal." The key words a jury would consider in this case are probably counsels and induces. A prosecutor would work to convince a jury that Palin's writings and rhetoric convincingly counseled violence or induced it in the attacker. It's not a requirement that Palin be a necessary element; it's not necessary to prove that this attack would not have happened without Palin's contribution. A jury would just have to decide that Palin suggested or supported such an action.

Frankly, it's pretty unlikely any jury would reach that conclusion.

What about Sarah Palin's free speech rights?

The Supreme Court decided in Brandenburg v. Ohio that some violent speech is protected by the First Amendment to the US Constitution. The Court decided that States could only criminalize speech "where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." This is a high bar for a prosecutor to reach in this case. Palin's web site was not apparently inciting imminent lawless action, and I don't think a jury would find that it was likely to do so either. While the web site listed individual lawmakers by name, and included gun sights targeting their districts, there was no direct call for violence, and most reasonable visitors would likely understand by the context that this was a political "call to arms" since this was published by the Palin PAC.

However the case isn't quite that open and shut. In 2003 the Supreme Court issued a relevant decision in Virginia v. Black, a case involving a statute criminalizing cross burning. While the defendants there claimed the statute infringed their right to free speech, the Court upheld the State's right to criminalize this form of expression because it was a "true threat"; the history of cross burning made this activity less an expression and more an intimidation. Here there is no statute prohibiting a publication of individual names with violent imagery, so Palin is not violating any law. However, if there were such a law, a prosecutor defending a conviction might look for evidence that such web sites have led to violence (e.g., against abortion providers) and try to make a similar argument.

Can you compare the Giffords shooting to the death of John Lennon?

Not really; an ambitious prosecutor would point out some salient differences. In particular, Sarah Palin did mention individuals by name, and placed gun sights (a symbol associated with violence) on their specific districts; Salinger's character did not shoot anyone, and especially did not mention John Lennon or anyone remotely like him. Because of these important differences, you can't say that just because it's unreasonable to associate Salinger with Mark David Chapman, it's therefore unreasonable to say Sarah Palin influenced Jared Lee Loughner. I think it's more compelling to do the analysis of her case on its own.