Saturday, September 23, 2023
Courthouse News Service
Saturday, September 23, 2023 | Back issues
Courthouse News Service Courthouse News Service

No Straight Line from Free Speech to Tucson

MANHATTAN (CN) - Two men often on opposing sides of legal issues - an ACLU executive and a former federal prosecutor - say they are not persuaded by people who blame vitriolic political rhetoric for the shooting spree that killed five people and wounded Congresswoman Gabrielle Giffords and 13 others in Tucson.

"I think part of the public discussion has moved into free speech. I'm not quite sure it should have. Nobody that seems to have access to the facts has sort of demonstrated that this guy, the shooter, was motivated by somebody's words," said Michael W. Macleod-Ball, chief of staff and First Amendment Counsel at the ACLU's Legislative Office in Washington, D.C.

Many commentators, including former President Bill Clinton, have compared the Arizona shootings to the Oklahoma City bombings of 1995, perpetrated by right-wing militiamen with anti-government ideology.

But a former prosecutor of Oklahoma City bomber Timothy McVeigh disagrees. Aitan Goelman says he sees little evidence that the Arizona killer was inspired by political beliefs or hate speech.

"McVeigh and Nichols had a particular ideology that held the government as the big villain, and they were very targeted about their hatred of the government," said Goelman, now a trial lawyer with Zuckerman Spaeder.

"From what I read of this guy, it didn't seem as focused on one particular enemy. It seemed more all over the place."

Goelman said that Jared Lee Loughner, the 22-year-old accused killer, seemed less concerned with politics than with paranoid theories of grammar, currency and "conscious dreaming."

The one parallel Goelman saw between Loughner and the Oklahoma City bombers was a shared obsession with currency.

"Terry Nichols used to write on his currency, 'Without prejudice, UCC 1207.' It was some bizarre militia pseudo-legal doctrine that if you did that, you weren't submitting yourself to federal jurisdiction," Goelman said.

Loughner and McVeigh both spent time in Arizona, but in vastly different places.

"I think the difference between Kingman and Tucson is greater than the difference between New York and Tucson," Goelman said.

Speaking of Loughner, he said, "It's still early to start psychoanalyzing him from afar, he seems to be more of a lunatic than a fanatic."

Loughner has been charged in federal court, with killing U.S. District Judge John Roll and other federal employees, and with trying to assassinate Congresswoman Giffords, who clings to life with a gunshot wound in her brain.

Loughner has yet to be charged in state court, where terrorism charges may be added.

Goelman said that at the time of the Oklahoma City bombings, a terrorism statute did not exist, but McVeigh and Nichols were charged with the closest thing to it: possession of a weapon of mass destruction.

While this does not apply to Loughner's case, he could be charged with a domestic terrorism charge that originated with the USA Patriot Act.

That law addressed crimes intended to "intimidate or coerce a civilian population," to "influence the policy of a government by intimidation or coercion," or "affect the conduct of a government by mass destruction, assassination, or kidnapping."

"The statutes [during the Oklahoma City bomber trials] were obviously terrorism statutes, but they didn't have that added component of being applicable only for acts of terrorism. But you know, what else are you going to explode a weapon of mass destruction for?" Goelman said.


Little is known about what made Loughner allegedly open fire on a crowd at a "Congress on Your Corner" event outside a Tucson grocery store, but observers have offered several explanations about contributing factors.

Pima County Sheriff Clarence Dupnik cited an atmosphere of hatred and xenophobia in Arizona, saying the state has "become the Mecca for prejudice and bigotry."

Others mentioned that Sarah Palin posted on the Internet an image that put 20 political districts in gunsight crosshairs, including Congresswoman Gifford's, with a message "Don't retreat, instead - RELOAD!"

Palin or her staff took that image off the Internet after the Tucson shootings, and a staffer then denied that the image included gunsights at all; the staffer said they were surveyor's marks.

Palin said that the image was not an incitement to violence, and was intended to organize people to vote against lawmakers who supported President Obama's health care bill.

"I have never been to a Sarah Palin website," Goelman said. "So I don't know from personal knowledge. It was my understanding that it was in the context of the elections, and these are the people we want to defeat for the ballot box."

In a Twitter feed, moviemaker Michael Moore suggested that Palin's imagery and rhetoric were not only irresponsible, but could be considered criminal incitement had they come from someone who was not a powerful public figure.

"If a Detroit Muslim put a map on the web w/crosshairs on 20 pols, then 1 of them got shot, where would he b sitting right now?" Moore tweeted.

Goelman said that if the hypothetical Detroit Muslim were encouraging voting against political opponents, he might not face any legal reprisal.

"There's such a wide berth given to free speech in this country," Goelman said.

But Macleod-Ball said that from his experience heading one of the nation's most prominent advocates of free speech, Moore's tacit assumption is true: that Muslims and other minorities often do not receive the benefits of free speech protections.

"I think there is no question that there is a different reaction among the population of the country and among law enforcement for those two situations. ... You even see it in Congress, where they call for the investigation of homegrown terrorism, and they focus on the Muslim community [while] the vast majority of instances of domestic terrorism have not been caused by religious minorities," Macleod-Ball said.

The ACLU represented Anwar Al-Awlaki, the militant imam cleric in Yemen who preached jihad to Fort Hood shooter Nidal Hasan. Al-Awlaki's father filed a lawsuit through the ACLU asking that a federal judge issue an injunction against his son's targeted killing. The judge denied the motion last month.

Macleod-Ball declined to talk about any current or past cases handled by the ACLU.

He said that commentators are right to draw a distinction "between what one has a right to say and what one ought to say."

Congressman Robert Brady, D-Pa., recently proposed legislation to limit speech that threatens public officials.

"We haven't seen the legislation," Macleod-Ball said. "We've seen public comment from him about this. We're sort of hoping that members of Congress sort of stop and think before they take the next step on this."

Goelman said he thinks that public figures would be wise to dial back their rhetoric, but declined to draw a straight line to Tucson.

"I do think that political vitriol can have horrible, unintended consequences and people would do well to keep that in mind when they are using rhetorical flourishes - making their political adversaries to be horrible people or un-American," Goelman said. "Now, that said, I don't know that this case falls into that pattern."

Categories / Uncategorized

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.