Freedom of Speech lies atop a short list of the most important civil liberties we enjoy as Americans. And it must vigorously protect the sorts of speech that are likely to cause offense. But it must not and does not provide safe harbor for those whose speech is likely to incite illegal activity and violence.
The Incitement Test, which flows from the decision in the 1969 Supreme Court case of Brandenberg v. Ohio, sets forth the following criteria to determine when the government may curtail speech in light of incitement...
"The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
I believe that the words of Colorado Pastor Kevin Swanson at last weekend's so-called National Religious Liberties Conference, and on many previous occasions, may well meet the definition of incitement to illegal action and that he should be arrested under available federal statutes, in order to determine whether his speech legally qualifies as incitement.
Courts may well disagree, and that's fine, but countless reasonable people will see that this is clearly the case. Pastor Kevin Swanson is as unhinged a person as any public figure I've witnessed, but his comically labored breathing and froth-cornered mouth are nothing compared to the venom he espouses. His comments at last weekend's Iowa GOP candidate event (brilliantly deconstructed by Rachel Maddow) at which he blamed most everything wrong with America on "the homosexuals", are an implied and direct incitement to violence against LGBT people.
It seems only a matter of time before a follower of Mr. Swanson takes his words straight to heart and kills a member of the LGBT community in the belief that they are helping to "cleanse" the country of what ills it. Or maybe a parent will take his advice, and drown their child for partaking of "satanic" Harry Potter books. (It wasn't clear from his comments whether watching the movie "Frozen" is in itself also reason to put children to death, or merely subject them to some lesser punishment.)
I take comfort that Swanson is part of a decided fringe, and that there are countless Christians in this country that are as offended by his attitudes as I am - I just wish they would be louder. And I am heartened that most people will take his argument - that attempts to call him out for his hate speech are part of an effort to oppress Christians - for what it is... absolute rubbish.
People like Swanson, even when they are not manifestly mentally ill, occupy a distorted mental space where Christians, a vast majority in this country, are actually an oppressed minority whose very existence is under constant threat. A siege mentality like that drives people to do crazy things, and if anyone enacts violence against an LGBT person based in part on Swanson's words, blood will be on the perpetrators hands, and also on Swanson's.
Apart from Mr. Swanson, who appears to be fully bathed in misery, and surely lives in a daily hell of his own making, I have to wonder what consequences there will be for the three GOP presidential candidates who attended the Iowa event last weekend. Well, at least one of them. Bobby Jindal is something less than an also-ran at this point, and will soon disappear into the annals of risible GOP trivia, and Mike Huckabee is simply on the latest leg of a perpetual book tour made possible by free media coverage. But Ted Cruz is increasingly talked about as a potential contender - a real contender - in the GOP race for the presidental nomination.
Before attending the Iowa event, Cruz was questioned on CNN about the wisdom of being the guest of a pastor known to have made radical and violent condemnation of LGBT people a foundation of his "ministry". Cruz, in the vein of a college debater who thinks he's clever but isn't, said he wasn't sure what Swanson had or had not said. Even if this was true then, it is not today. He sat through Swanson's breathless rant about the evils of "homosexuals", and then was interviewed by him on stage, essentially kissing his ring.
While President Obama may or may not have been in attendance for controversial comments by the Chicago Reverend Jeremiah Wright, who made inflammatory but comparatively dull statements about the history of race in America, Ted Cruz was inarguably in attendance for, and a keynote invitee of, Swanson's event.
If the mythical "liberal media" was anywhere near as liberal as right-wing provocateurs claim, Cruz would presently be questioned about nothing else but this choice for the next several weeks. There would be New York Times editorials about his attendance, and his radical, not-even-close-to-mainstream views would be once-and-for-all exposed. And his candidacy would be rightfully, mortally wounded.
Here's to hoping.
*CORRECTION: This blog stated incorrectly that Kevin Swanson was an Iowa pastor.