It’s been apparent for some time that the current Supreme Court precedent on incendiary speech, Brandenburg v. Ohio, simply isn’t adequate anymore. That decision came down in 1969, and only made even the most incendiary speech a crime if it was intended to lead to “imminent lawless action.”
However, that decision came down during an era of typewriters and leaflets. Time and again in recent years, we’ve seen what seems to be irrefutable evidence that the “imminent lawless action” standard simply doesn’t work in an era of computers, smartphones and social media.
Well, add another example to the list. Earlier today, Right Wing Watch noticed that far-right provocateur Josh Bernstein made a thinly-veiled call for gun owners in Washington state to resist a newly-enacted gun reform measure—even if it meant shooting police officers.
Bernstein was referring to Initiative 1639, which bars anyone under 21 from owning a semi-automatic rifle. It also requires anyone buying a semi-automatic rifle to pass a background check, take a safety course and wait 10 business days before taking possession of the weapon. Gun owners can now be charged with a felony for leaving a gun in a place where a person who is disqualified from having a gun can get their hands on it. The measure passed in a romp, 59-40.
Now who could have a problem with that? Well, Bernstein had a really big problem. Right Wing Watch got a clip.
Falsely claiming that this could lead to guns being confiscated, Bernstein warned that “there’s gonna be bloodshed” if this measure is enforced. He then made a chilling call—gun owners in Washington should do what they have to do to protect their Second Amendment rights.
Many Washington state gun owners will and should defy—that’s right—defy Initiative 1639 and do whatever it takes to secure their Second Amendment rights. I will leave it at that. I will leave it at that. I don’t want to say much more, but I’m sure you understand and you can read through the lines.
We understand loud and clear, Josh. You were calling for police officers to be shot if they dared try and take guns away. And you knew very well that you were skating close to the line, because you actually said, “You can read through the lines.”
This is not acceptable. What is equally unacceptable is that even though there is no doubt Bernstein is all but encouraging his audience to engage in unlawful conduct, it will be really difficult to hold him to account at the criminal level, and maybe even the civil level.
I am almost a libertarian on civil liberties issues, and strongly oppose hate speech laws. At the same time, the status quo is not acceptable—and this screed from Bernstein proves it. It is time to replace “imminent lawless action” with a new standard—any speech that a reasonable person would incite violence or identity theft.
There is something we can do, though. Go over to the original video and flag it for promoting terrorism. After all, Bernstein is engaging in textbook stochastic terrorism. Come on, snowflakes. Let’s bury this wingnut in a blizzard.
