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By KEN PAULSON
First Amendment Center
A Pennsylvania congressman is targeting bull’s-eyes.
In the wake of the attempted assassination of Rep. Gabrielle Giffords, D-Ariz., and the murder of federal Judge John Roll, Rep. Robert Brady, D-Pa., told The New York Times that he plans legislation that would ban language or symbols that could be perceived as threatening federal officials and members of Congress.
Pointing to an existing federal law that criminalizes threats against the president and vice-president, Brady suggests the same provisions should apply to others in the federal government. But he goes further, saying his bill would mean “You can’t put bull’s-eyes or crosshairs on a United States congressman or a federal official.”
In other words, Brady is identifying specific symbols that would be outlawed in commentary about federal officials. He’s also apparently alluding to the use of crosshairs on Sarah Palin’s website to identify targeted political opponents during the last campaign season.
Politics aside, Brady’s proposed legislation would be both unnecessary and unconstitutional.
It would be unnecessary because:
• Federal law already prohibits threats made “in interstate or foreign commerce,” which in this digital age means just about any communications beyond yelling across the street. The law protecting the president has similar provisions, without the interstate commerce requirement.
• State laws also criminalize direct threats of harm.
It would be unconstitutional because:
• First Amendment law is clear. Americans are free to express themselves using violent imagery or ideas unless their intent is to threaten a specific person, trying to instill fear of harm or death. The use of a bull’s-eye or crosshairs on a website, without a more specific threat, wouldn’t meet that test. Palin’s crosshairs enjoy full First Amendment protection.
Supreme Court and federal court cases over the past four decades have established that while the government can arrest people for making “true threats,” political hyperbole and the general advocacy of violence cannot be punished.
Brady’s bill strives to limit threatening language, but there were no threats in the shooting of Rep. Giffords. The shooter showed up with a gun, without threats, without warning, and without notice.
Robust political debate is at the heart of a democracy. Sure, free speech can be ugly and offensive, but government has no authority to limit words and symbols where no other crime exists.
In the shadow of a tragedy, there’s an understandable impulse to do something — anything — to prevent it from happening again. In this case, though, the congressman’s proposal would largely duplicate existing federal and state laws and take a big chunk out of the First Amendment.
Ken Paulson is the president of the First Amendment Center and a founder of 1 for All.