By Ernest A. Canning on 6/17/2011, 1:44pm PT  

Guest editorial by Ernest A. Canning

On his Tuesday radio show, syndicated over the public airwaves on some 200 stations, Rightwing talk show host Neal Boortz said:

This town [Atlanta] is starting to look like a garbage heap. And we got too damn many urban thugs, yo, ruining the quality of life for everybody. And I'll tell you what it's gonna take. You people, you are - you need to have a gun. You need to have training. You need to know how to use that gun. You need to get a permit to carry that gun. And you do in fact need to carry that gun and we need to see some dead thugs littering the landscape in Atlanta. We need to see the next guy that tries to carjack you shot dead right where he stands. We need more dead thugs in this city.

His entire rant, appearing to encourage the vigilante murder of unnamed "thugs" across the major Atlanta metropolitan area, can be heard below.

The question now is: Did Boortz incite murder over our public airwaves and should he be prosecuted for it? Moreover, will complaints be filed by the public at the FCC's website (hit the "Take Action" button there, if you'd like to file your own complaint), demanding an investigation and prosecution for the potential crime and/or sanctions against the affiliate stations who broadcast it to the public?...

As we noted some months ago in "Should Major US Pundits, Politicians be Prosecuted for Incitement to Murder, 'Terrorist Threats'?" citing the landmark U.S. Supreme Court decision in Brandenburg vs. Ohio, while the First Amendment shields individuals who merely advocate the violent overthrow of the government, it does not protect speech which is "directed at inciting or producing imminent lawless action" that is "likely to incite or produce such action."

Boortz's recent rant, which was replayed on the Ed Schultz Show (see video below), does more than raise issues of scarcely veiled racism --- a racism made even more painfully obvious on past occasions when Boorz referred to Muslims a "cockroaches" and slandered the hapless victims of Hurricane Katrina as "parasites" who would do nothing to help themselves. While Schultz focused largely on the racial aspect, the criminal aspect --- and whether that should be allowed over our public airwaves --- is of more direct concern to us here.

In suggesting vigilante justice in the form of "dead thugs littering the landscape in Atlanta," Boortz joined a growing list of right-wing politicians and pundits, who have crossed the line from advocacy (free speech) to criminal incitement --- a list that will no doubt continue to grow unless and until the Federal Communications Commission (FCC) and the U.S. Department of Justice (DOJ) take the words that appear above the portico of the U.S. Supreme Court ("Equal Justice Under Law") seriously.

FCC must deal harshly with incitement to murder

It is a testament to misplaced priorities that the FCC is so quick to come down on any utterance of what the late George Carlin described as "the seven dirty words," but, as revealed by a May 18, 2000 letter from the Chief of the FCC's Enforcement David H. Solomon, can do little to proscribe dehumanizing racist rants unless they cross the line into incitement.

[T]he Commission's policy is not to take action against stations for the broadcast of material that is offensive or potentially foments violence unless it rises to the level of a "clear and present danger."...[which includes] among other things, derogatory remarks about Jews and African-Americans where no demonstration that the speech was "directed toward inciting or producing imminent lawless action and is likely to produce such action".

While a more enlightened policy would take into account the fact that many incitements and threats of violence are themselves the product of dehumanization --- a process defined by Professor Phillip Zimbardo in The Lucifer Effect as a means "by which certain other people or collectives of them are depicted as less than human" --- the fact is that when commentators cross over to the point of incitement, they have reached the legal limit of that which can be tolerated on our "public" airwaves.

That legal limit was exceeded by former right-wing shock jock (and one time FBI informant) Hal Turner. Turner was convicted of incitement after he responded to a decision by three federal judges, who upheld Chicago's handgun ban, by posting the judges' photos and work addresses, adding: "Let me be the first to say this plainly: These judges deserve to be killed."

Boortz's rant, while perhaps not as detailed as Turner's in describing the precise identities of the targets, was just as explicit in calling for mass vigilante murders --- "dead thugs littering the landscape."

Equal Justice Under Law?

Authorities were quick to pounce on J. Eric Fuller, who was shot in the knee by Jared Lee Loughner, after Fuller took the picture of a Tuscon Tea Party founder, and said, “You’re dead.”, but, to date, no action has been taken against the growing list of politicians and pundits who have openly called for the assassination of Julian Assange.

As we previously noted, that list includes former GOP Vice Presidential Candidate Sarah Palin, former GOP Presidential Candidate Mike Huckabee, Fox News commentator Bob Beckel, Washington Times columnist Jeffery T. Kuhner, who titled his column "Assassinate Assange” captioned with a picture Julian Assange overlayed with a gun site, blood spatters, and "WANTED DEAD or ALIVE" with the alive crossed out, Rush Limbaugh, and G. Gordon Liddy.

The DOJ appropriately prosecuted an emotionally disturbed, 33-year old Norman Leboon, who was arrested when he threatened to kill Rep. Eric Cantor (R-VA), but neither the DOJ nor the FCC took any action when Glenn Beck mused on-air about wanting to kill Michael Moore or when Michael Reagan, the son of the former President, suggested we "take out" and "shoot" 9/11 conspiracy theorists. He'll "pay for the bullet," he told his audience over our public airwaves.

If there is truly "Equal Justice Under Law," it should not matter whether it comes from the Left or the Right, from an emotionally disturbed but impoverished individual or a billionaire. Incitement to murder, making terrorists threats, are crimes and must be treated as such.

The FCC does have a formal online complaint procedure here.

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I spoke last night with Brad Friedman on the Mike Malloy Show about the legal matters in question here. That interview can be downloaded here MP3, or listened to below [appx 12 mins]...

The entire Boortz rant is below courtesy of Media Matters:

MSNBC's Ed Schultz Show plays pieces of Boortz rant and focuses on the racial aspects...

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Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968).

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