Was the Shooting in Arizona an Exercise in Free Speech?

We do not know why the shooter targeted Rep. Giffords. Sarah Palin did not arm him or pull the trigger. We do not know if the shooter admired, loathed or ignored Sarah Palin. We will eventually know, and that will be a different accounting. But only Sarah Palin put 20 Democratic members of Congress in her crosshairs, and only Sarah Palin bragged that 18 are now gone, leaving Rep. Giffords and Rep. Nick Rahall of West Virginia.

Someone has to say it. There has been an astonishing acceleration of violent right wing rhetoric. At the same time, the mainstream media has come to accept armed revolution (second amendment remedies) and violence as legitimate political discourse instead of calling it out as behavior that crosses a very dangerous line. In the past week alone, incendiary devices were received at the offices of the Democratic Secretary of Homeland Security and the Democratic Governor of Maryland.

This is what Sarah Palin, Sharron Angle and others like them have wrought with their violent and vitriolic rhetoric that literally places gun sights on people who don't agree with their extreme views. Apologists on the right are already saying that while tragic, this event was simply the result of an isolated act by a deranged individual. There have always been deranged individuals. But they have not always had easy access to guns nor have they always lived in a 24-hour-a-day media machine that promotes a toxic soup of violent attacks on political opponents.

Sarah Palin: "America's Enduring Strength" from Sarah Palin on Vimeo.

We enjoy the right of free speech in this country, but even it has its limits. Oliver Wendell Holmes' opinion in the United States Supreme Court case Schenck v. United Statesin 1919, upheld the Espionage Act of 1917 and concluded that a defendant did not have a First Amendment right to free speech against the draft during World War I.

Holmes, writing for a unanimous majority, ruled that it was illegal to distribute flyers opposing the draft during World War I. Holmes argued this abridgment of free speech was permissible because it presented a "clear and present danger" to the government's recruitment efforts for the war. Holmes wrote:

The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

Following this definition, aren't Palin's Facebook crosshairs map and words ("Don't Retreat, Reload") of a nature and used in such circumstance as to incite violence? Isn't the Arizona shooting a perfect example of "clear and present danger"? Seems like we are getting no better than the Taliban.