Congressman Reportedly Moves to Criminalize Threatening Speech Against Members of Congress

Unfortunately, one of the most predictable things to follow a madman’s attack in this country is a slew of new laws proposed by politicians — often laws that threaten first amendment or fourth amendment rights. In the first of what may be a slew of such measures following the Arizona massacre, Rep. Robert Brady (D-Pa.) has indicated that he now plans to introduce legislation that would make it a federal crime to use language or symbols that could be perceived as threatening or inciting violence against a federal official or member of Congress. The law will be designed on the model of the law criminalizing threats against the President. That law has long been controversial with civil libertarians and Rep. Brady’s law will only magnify the constitutional concerns.

The despicable attack on Rep. Gabrielle Giffords (D-Ariz.) (who was shot with 18 other people) has prompted the call to criminalize speech. The matter is simple for Rep. Brady: “The president is a federal official. You can’t do it to him; you should not be able to do it to a congressman, senator or federal judge.” Of course, that ignores the serious constitutional concerns raised by the presidential provision — a crime that has led to columnists, cartoonists, and others being put under criminal investigation for expressing their opposition to past presidents.

In discussing the matter with CNN, Brady appears to see his effort as part of an effort to curtail violent speech: “The rhetoric is just ramped up so negatively, so high, that we have got to shut this down.” Violent speech, however, is protected in the United States, as discussed in this column. Political speech is often passionate and passions can lead to the use of obnoxious or irresponsible speech. Putting aside the constitutional problems, we need to think seriously about criminalizing this large area of speech in our country. We are fast criminalizing every aspect of American life with politicians refusing to accept anything other than a new crime to signify the importance of their views.

Politicians often act with emotions are running high with voters — pushing through popular but short-sighted legislation. I am not saying that Rep. Brady is pandering to such emotions. I am willing to accept that he is acting as he honestly believes is necessary. However, it is not the motivations but the means that concern me in his worthy effort to protect members of Congress.

If this bill is introduced, I am concerned about the intestinal fortitude of members to oppose it. Congress has long been short on civil libertarians and has historically shown little inclination to put constitutional values ahead of popular legislation. I hope that I am wrong. However, civil libertarians need to react quickly to this proposal to educate members and the public alike over the implications of a sweeping criminal provision by Rep. Brady below. Here is his bio.

Source: Hill

Jonathan Turley

129 thoughts on “Congressman Reportedly Moves to Criminalize Threatening Speech Against Members of Congress

  1. Observer,

    The issue is that the proposed law covers far more than the direct threat that you hypotheses. It criminalizes any language which could be perceived as threatening (not an explicit threat). Someone saying “We need to get rid of that bum!” (referring to a specific member of Congress) could conceivable be perceived as threatening.

  2. Since the argument says “If this bill is introduced,” there appears to be no “proposed law” yet, is there, so how do we know it “criminalizes any language which could be perceived as threatening”? Let us see the language of the bill, if introduced, but in the meantime, we do not have to suicidally protect “We need to [shoot and kill] that bum!”

  3. Threatening language directed towards an official proceeding is already criminal. It’s in the Witness Intimidation Bill.

    The deal is that DOJ has been using 18 USC section 1512 as a sentence enhancer when it already has criminal charges against the person but it doesn’t enforce it when it doesn’t have pending criminal charges against the person and it uses some sort of selection process to decide when to press criminal charges. If the perps are connected and the victim isn’t, DOJ doesn’t press criminal charges.

    But as far as Congressional representatives and their staff, the existing law already authorizes 20 year sentences for threats.

  4. […] This has proved trickier ground to negotiate in a post-9/11 world. Speech that threatens harm, especially against the President, does not exactly go unnoticed; Eugene Volokh distinguishes between investigation-triggering speech v. criminal speech here. (It is worth noting that even “just” investigation of certain speech—after tending to initiate visits from the FBI or the nice men and women who speak into their wrist cuffs, would have a chilling effect on future speech of this content and caliber.) And this shooting has already inspired calls to criminalize threatening speech or symbolism against representatives or federal officials, what some view as legislative excess. […]

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