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Campaign civility, enforced by law?

The press has been full of chatter this week about the supposedly unprecedented vehemence of campaign rhetoric on the Republican side of the presidential contest -- a charge that, as my colleague John Leo has noted, may be a trifle overwrought at best. Now lawprof Susan Kuo (South Carolina), writing at Concurring Opinions, asks whether the GOP candidates might have a "legal duty" to tone down their attacks, lest supporters of theirs commit (still-hypothetical) acts of impulsive rage that would never have taken place otherwise. Invoking the Model Penal Code, she explores the possibility of assigning criminal responsibility to the candidates for not cooling it with their language despite the knowledge that there are unhinged partisans out there.

Meanwhile, John Sweeney of the AFL-CIO -- the AFL-CIO! -- has piously proclaimed outrage over the inflammation of crowd sentiment in the Presidential race. As Prof. Bainbridge notes, four years ago union protesters stormed Republican offices in multiple cities, ransacking the party's Orlando office where a protester broke the wrist of a campaign worker, and intimidating workers in Miami, Tampa and elsewhere. Perhaps it is a kind of blessing that the race this year does not appear close enough for the organization's sympathizers to have found it advisable to repeat such tactics.

More: Howard Wasserman at Prawfsblawg wishes to preserve the relevant distinctions: "I cannot buy the notion being floated that anything unlawful is happening. ... ugliness is not unlawfulness. And whatever criticism the [Republican] campaign warrants for engaging in personal attacks and riling up the crowd, charges of engaging in 'borderline incitement' should not be among them." Similarly: Scott Greenfield.

Further: To amplify John Leo's point: the NYT's Frank Rich now accuses McCain and Palin of "inciting vigilantism" through public rallies on which "Weimar-like rage" is on display -- yes, that's right, he's invoking the Nazis' rise to power as his own special contribution toward de-escalating the rhetorical heat. According to David Bernstein's calculation, Rich's actual backup for the premise of a violent mob atmosphere rests on four (4) five incidents [Bernstein revised the number] in which nasty catcalls or outbursts were recorded from persons at rallies attended by hundreds of thousands of supporters.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.