I've been thinking about how to walk the line between free speech and, in some way, sanctioning or punishing people whose speech directly harms people. It's a tough one because it's a dangerous path when you start to say that those who watch Fox "news" or OAN or listen to Rush Limbaugh or read savagely right-wing websites like Breitbart or QAnon boards are being harmed because that asks for a judgment call on what is ultimately a right or wrong way to live. You can't stop speech just because you think someone's beliefs that come from that speech are reprehensible. You don't challenge that because of how easily that can be (and has been) used to attack the speech of the left. Just ask anyone who espoused openly Communist beliefs at any point in the last 100 years. If flag burners are protected, then Trump flag wavers are protected.
But I do think a strong case can be made that when speech is used in a way that is so egregious that it is the direct and demonstrable cause of physical harm to people, it has crossed a border from "protected" to "punishable." This isn't about you yelling, "Fire" in a crowded theatre. Instead, it's about you yelling, "There is no fire" to a crowd while you know the theatre is burning. On some level, you bear some responsibility for all the people who burned to death, even if you didn't light the flames and bar the exits.
So it is with President Donald Trump and almost the entirety of the right-wing political and media ecosphere. We have listened and read and watched since the beginning of the Covid pandemic as Trump has not only openly scorned scientists but has advised people to act in ways that are completely the opposite of every safety guideline being issued by his own government. And he has been backed up at every turn by lickspittle governors and anxious-to-please members of Congress, not to mention the nightly reports from outlets like One America "news." This is everything from denial of the severity of Covid to denial of the effectiveness of masks and social distancing to denial of the existence of Covid at all.
We know that all of this has had an effect. The current surge in cases in the United States, all entirely predicted by doctors and medical scientists, and the forthcoming surge in deaths are the result of this outright lying and denial in the face of overwhelming scientific consensus. We get reports constantly now of Covid patients who adamantly refuse to believe they have the very illness they're diagnosed as having or saying that it's not a big deal just before they end up being placed on ventilators or dying. It's madness, and for telling people that it's okay to stick their hands in the toaster, someone ought to be held accountable.
I keep coming back to the case of Michelle Carter. She was convicted of involuntary manslaughter in Massachusetts in 2017 because, in 2014, she sent a series of texts to her suicidal boyfriend encouraging him to kill himself and then listened on the phone while he died inhaling carbon monoxide in his truck parked in a garage. Carter never called anyone to help Conrad Roy. In fact, when he decided to get out of the truck, Carter badgered him into staying. She let him die, and she was sentenced to 15 months in prison. When she appealed the conviction, the panel of judges on the Massachusetts Supreme Judicial Court upheld the conviction, saying, "She did absolutely nothing to help him: she did not call for help or tell him to get out of the truck as she listened to him choke and die." The U.S. Supreme Court did not take up an appeal, and Carter served her sentence, getting out early for good behavior this past January.
It's a problematic case, to be sure, with all kinds of implications, but with this case, along with cyberbullying laws that can get people arrested for encouraging suicide, it seems like a line is being drawn on what is permissible when it comes to speech. Sure, Roy might have killed himself without Carter's actions, but she sure as hell helped it along. This wasn't a thought crime, like writing cannibal fantasies. This had a direct, real world tragedy that could have been stopped but wasn't.
So I can't help but think of parallels between Carter's case and the actions of Donald Trump and his band of merry Covid liars. You have a population that wants to act in a way that we know will harm them and a president, along with all of his minions, encouraging them to do the very things that will cause harm, even deriding those who would act more cautiously. Then, when that population starts getting sick and dying, instead of trying to change their behavior, the president, along with all of his minions, doubles down on his rallies and events that lead to more sickness, with perhaps 700 people dying as a result. You could even put down the lack of a national plan on Covid as another inaction in the face of actual harm occurring.
Shouldn't the people who cheered on the dangerous actions when they knew better and then did nothing to help face some kind of punitive action? Is it not justice for the dead and sick? This is not about free speech. It is not about ideology or an exchange of ideas. It is about how much lying about facts can be allowed. We allow a great deal under the banner of free speech. But the First Amendment is not a murder/suicide pact. Speech that encourages people to go mask free in a crowd during a pandemic is not the same as speech that is about even horrible things, like racist and sexist language. We have to be willing to see a difference.
Maybe, though, this isn't the best legal analogy. Perhaps another way to look at it is through the cases against cigarette manufacturers. Trump is like the tobacco companies that hid how addictive nicotine was and how there is a link between smoking and cancer to protect their profits. Trump knew how harmful Covid was but lied to the public to protect his image and his reelection chances. Of course, no one went to jail and Big Tobacco paid its fines and went about its killing ways. So I'll stick with the analogy that ends in prison time.
Things didn't need to be like this in the nation when it comes to the coronavirus. Yes, of course, there would have been screw-ups and delays and other mistakes no matter who was in office. But Trump, most Republicans, and their media allies took it upon themselves to lie to those who they knew would obey their every word. They made a calculated decision to dismiss the danger, and as the nation reaps their whirlwind, they should be lawyering up.
(Lemme add: I'm not a lawyer. I'm sure I'm missing a great deal here, and I'm sure I'll hear from you if there are cases that have dealt with this kind of thing already.)
Update: After posting this, Ian Smith, some lawyer guy who contacted me, wrote to say what he thinks works and doesn't here: "What you've actually done there is articulate what the law on this kind of reckless speech already is. Although most people know it as 'yelling fire in a crowded theater,' that's not the actual legal standard. The actual legal standard is 'falsely yelling fire in a crowded theater,' which I think actually gets at the distinction you're searching for in your post. So what you're searching for is already built in.
"The problem, as always when talking about most kinds of criminal or legal liability, especially for speech, is that you generally need to show that (a) the person knows what they are saying is false, and (b) a sort of intent for using said knowledge recklessly. How do you prove that Trump doesn't believe the dumb shit he says about the coronavirus? How do you prove that he intended for his gormless minions to go out and murder themselves by acting on his false knowledge? We have a system set up to determine these things: a court of law. But you need to provide proof in a court of law---proof beyond, 'But it's obvious, just look!' If you want to go beyond that, then you get into very shady territory."
Yeah, it would be a hard haul in court, but to take down Trump and the rest, it would be worth the effort, at least. And I'll be stealing "gormless minions" in the future.
