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Tuesday, January 11, 2011

Arizona Shooting Sparks Moral Hazard

Some congressional leaders are proposing free speech restrictions in the wake of Saturday's attempted assassination of Arizona congresswoman Gabrielle Giffords (D-Tucson). 

These proposals are a transparent attack on the "right wing" or "Tea Party" movements, despite the fact that there are, at the very least, indications that the alleged shooter, Jared Lee Loughner, has had Marxist or Communist sympathies

Other criticisms of talk radio and political television shows are targeted at the content of speech, and laws aiming at the content of speech are almost always found to be constitutionally impermissible.  Some of the hysterical commentary all but suggests that Rush Limbaugh and other conservative talk show commentators (who are entertainers, first and foremost) were accomplices to the shooting and currently should be considered unindicted co-conspirators.
The risk of a new law providing for this should be obvious to those who recall the saying:  Where there is a will, there is a way.  (Or the old Soviet saying: Show me the man, and I'll show you the crime.)  Such a law can be used to silence -- or prosecute and even imprison -- political opponents based on the content of their speech.  The actual speech can even be innocuous; all that would be needed is a deliberate mischaracterization. 

Let's be clear: The stated purpose of the law would be protection of the public.

The real purpose of the law will be to silence the target of the law. 

There is another global risk to such laws.  Unlike the common law concept of the criminal law, which seeks to hold criminals responsible for their own actions, such free speech laws threaten to hold speakers criminally responsible (and very possibly under a "strict liability" standard) -- for the actions of others.  

It gets worse:  A speaker would be presumed to motivate and control the actions of others.  This presumption can lead to a moral hazard.  Wrongdoers who learn that they can escape responsibility for their own actions will not be deterred from repeating their crime.  Wrongdoers who can hand off the consequences of their actions to someone else may actually be encouraged to continue their bad behavior.

This is a recipe for a looming disaster: the investigation and virtually certain prosecution and imprisonment of innocent Americans for daring to participate in civic life and scrutinize, question or oppose the policies of their elected leaders. 

Legislators would do well to consider the long-ranging policy implications of their proposals, instead of seeking the quickest sound bite and trying to blame the opposition. 
Unlike this sheriff (who is following the bad example of former California state judge Lance Ito in enjoying his new publicity too much) they should learn it is better to remain silent and be thought a fool, than to speak and erase all doubt. 

Eric Dixon is a New York lawyer who offers legal advice, strategic analysis, crisis management and stress management in connection with complex legal problems, investigations and other sensitive personal, business and political matters.  Mr. Dixon has been practicing law since graduating from Yale Law School in 1994. Mr. Dixon cautions that this article is not legal advice. Mr. Dixon has handled election law and other matters for over two dozen political clients, and also handles corporate investigations, due diligence and sensitive matters including crisis management. Mr. Dixon is available for consultation or comment at and 917-696-2442.   

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