LePage’s Words Aren’t Just Irresponsible, They’re Illegal
by Wells Lyons
“I tell ya, everybody in Maine, we have constitutional carry. Load up and get rid of the drug dealers. Because they’re killing our kids,” said Governor LePage.
Wondering why our governor’s latest rant sounded even more troubling than usual? It could be because if those words were uttered by anyone other than the politically protected LePage, the speaker would likely have been arrested on the spot.
The First Amendment protects an incredible range of speech, but it’s not carte blanche to say whatever you want with impunity. You can’t lie under oath and then claim your rights have been violated when you’re charged with perjury. You can’t threaten to burn down your office unless the boss gives you a raise. And you can’t stand outside of a church or a mosque with a sign that reads, “We have constitutional carry. Load up and get rid of these people, because they’re killing our kids.”
Most people will see the sense in protecting Christians and Muslims from speech advocating their imminent murder. Drug dealers present a harder emotional case. Heroin is killing our kids – as well as our siblings, our classmates and our friends. But that doesn’t mean we should be calling for street level dealers to be hunted down in the streets.
Certain inflammatory speech is not constitutionally protected. In Brandenburg v. Ohio, the Supreme Court held that speech that is directed to incite, and likely to incite, imminent lawless action is beyond the protections of the First Amendment. The imminent lawless action test set forth in Brandenburg, has three components – intent, imminence and likelihood. The case can be made the governor’s comments hit all three.
Intent is plain from the governor’s history of advocacy for cruel and unusual punishment of drug traffickers. He has called for their deaths by forced overdose and public beheading, even going so far as to suggest we place bets on where the heads of the condemned will ultimately rest.
While after his initial comments the governor claimed that he was not advocating vigilante justice, he appeared to do so with all the sincerity of a child who has just been overheard threatening a younger sibling. “I didn’t really mean it,” isn’t much of a defense when the circumstances strongly suggest otherwise.
Our governor runs on a combustible mix of hatred, ignorance and contempt. His intent is clear. One gets the sense that if a suspected drug dealer was shot and killed in the streets of Bangor, LePage would host a banquet for the shooter.
Imminence is the second requirement, and the governor’s words cleared this hurdle as well. He didn’t say, “After careful planning, and at some indefinite time in the future, we should consider loading up and getting rid of these people.” No, his words are advocating for violence today. The conditions have been met – enough already – we have constitutional carry. Load up. Get rid of these people. These words posses an urgency that screams now – now is the time to act. Don’t wait. They’re killing our kids.
Finally, the issue of likelihood must be addressed. Could the governor’s invocation likely cause someone to commit murder?
It’s a fair question. The man has a fanatical following, especially among the unhinged. He commands authority, holding the highest elected office in the state and serving as commander-in-chief of the state’s armed forces. It’s not hard to imagine someone who, under the emotional duress of losing a loved one to addiction, and thinking they have the approval of the governor, hunts down the person who sold their son or daughter the fatal dose.
If anything, the governor’s authority makes his words more likely to incite unlawful action than if they had been uttered by a mere protestor or talk radio host.
Say someone does get shot. Drug dealers often do. And say the shooter claims the governor told them to do it. Then what? If anyone else had made these comments they would be held accountable. Why not our governor?