Can we arrest Trump or Carson, for example?

November 23, 2015 1:56 PM

I'm trying to figure out if some of the presidential primary candidates have said things in on the campaign trail that could warrant arrest. I'm thinking there are (at least) two kinds of potential offenses: slander/libel and harassment/threats/intimidation. However, my understanding is that these must be committed against individuals, not classes. Walk me through this, please.

So for example, the recent statements and graphic Donald Trump put out about race and crime data. Random Joe Blow Citizen can say these things, but people in positions of power have much more influence.

So, I can see if you are black or Muslim, that you could feel very harassed, threatened, or defamed.

More examples: Threatening being put on a registry (Muslims) or saying falsely that (unidentified) Muslims in New Jersey were celebrating after the 9/11 attacks.

More broadly, is it possible for a person to be arrested for their words against a protected class?

posted by Stewriffic to Law & Government (23 answers total)

Best answer: In order to slander/libel, you have to slander/libel a specific person(s) with a provably false accusation. You can't slander/libel "Muslims" as an undifferentiated, generalized group.
posted by Cool Papa Bell at 1:59 PM on November 23, 2015 [8 favorites]

Best answer: In America, I think the 1st Amendment generally protects people from being arrested or charged with crimes for offensive speech. This is somewhat anomalous compared to other countries, as I understand. For example, Marine Le Pen, the leader of France's National Front is being charged with inciting racial hatred for comparing Muslim prayer with Nazi occupation:

Al Jazeera coverage
posted by permiechickie at 2:06 PM on November 23, 2015 [2 favorites]

More broadly, is it possible for a person to be arrested for their words against a protected class?

Not in the US. The First Amendment protects against it. The kind of exemptions that apply for shouting fire in a crowded theater do not apply to this situation.

Moreover, defamation is a tort, not a crime. The police don't arrest people for civil offenses.
posted by axiom at 2:08 PM on November 23, 2015 [13 favorites]

Not every state criminalizes libel. It's usually a civil complaint that a specific individual has to bring, and as I understand it, it's generally a pretty high bar to prove. (The US courts are not nearly as litigant friendly as most people seem to think.)

This is an out of date list of criminal defamation statutes. Colorado's has been repealed since then, for one thing.

I don't know much about the harassment and intimidation part, and I am not a lawyer or anything, but generally speaking, it's difficult to make those cases as well, because of first amendment concerns. Take me with a grain of salt, but I'm pretty sure any sort of harassment or intimidation would have to involve specific, credible threats to specific people.
posted by ernielundquist at 2:14 PM on November 23, 2015

Slander/libel aren't generally criminal offenses; they are civil matters. While there are some criminal defamation laws in certain states, there have only been a few dozen cases in years. You aren't arrested for a civil case; you just get sued.

There are also broad public policy reasons (not to mention the First Amendment) why arresting politicians for their speech, even when they express odious views, is problematic. The general view is that these kinds of things are better worked out at the ballot box than the jury box, and I can't imagine a judge would want the resulting circus of such a case anywhere remotely near their courtroom.

As awful as much of what comes out of Trump's mouth is, arresting a politician for his speech would represent a profound blow for the First Amendment, and even many Trump-haters would find it deeply troubling.
posted by zachlipton at 2:15 PM on November 23, 2015 [5 favorites]

Not just no, but HELL NO.

Freedom of speech in the USA is precious. Today, it's muzzling speech that offends your definition of "protected" people. Tomorrow, it's their definition. Laws against speech are the very epitome of "slippery slope."
posted by Gerard Sorme at 2:20 PM on November 23, 2015 [15 favorites]

I think slander/defamation wouldn't work in any common law jurisdiction, because those require specific individuals to suffer reputational damage and to sue in their own name. Particular plaintiffs would have to bring the action and to show that they personally had suffered damage to their reputations as a result of Trump's statements, which would be a difficult standard to meet.

For criminal prosecution of this kind of speech, you would need hate speech laws rather than laws targeting defamation generally and the US doesn't have those because of the 1st amendment. If you are interested in this issue, and in comparing the US position with other jurisdictions, there is a great debate available on YouTube, in which Jeremy Waldron criticises the US position and Ronald Dworkin defends it.
posted by Aravis76 at 2:23 PM on November 23, 2015

Also, prosecutors aren't supposed to use their office for political purposes. See, for instance, this 2012 memo from the Attorney General to all Justice Department employees on "election year sensitivities." Seeking a criminal indictment against a Presidential candidate for their speech during the course of a campaign, especially on the basis of a legal theory that is likely unconstitutional, would drag the prosecutor into a political quagmire in which he would be seen to be using his office to influence a federal election. It's unlikely to end well for anybody involved.
posted by zachlipton at 2:25 PM on November 23, 2015 [1 favorite]

Yeah, much as it is tempting sometimes, you can't actually indict anyone for bad statistics or anecdotes about particular kinds of people. The closest you've got is "incitement to riot", but I think that's only a crime if the riot actually happens.
posted by corb at 2:27 PM on November 23, 2015

The solution to this is political, not legal. We can't arrest them, and it would be hard to sue them. We can organize politically to fight their agenda.
posted by ArbitraryAndCapricious at 2:53 PM on November 23, 2015 [1 favorite]

Best answer: Thinking more on this, speaking to the part of the question of threats and harassment. It comes down to the question of immediacy and specificity. This essay looks at laws intended to criminalize cross-burning as hate speech and intimidation, and it comes down to ... burning a cross at a KKK meeting on private land is different than burning a cross on a black family's lawn.

Under the First Amendment of the Constitution of the United States, ‘hate speech’ is constitutionally protected unless the circumstances of the case indicate that the speaker intended to threaten violence or provoke an immediate act of violence. While a person may be removed from a classroom or fired from employment for engaging in ‘hate speech’, under the First Amendment a person may be charged with a crime only if their statements constitute a threat or provocation of immediate violence. Moreover, even in cases where it is clear that a person is threatening violence or that violence is imminent, the person may be criminally prosecuted only if the law in question is carefully drawn so that it applies only in appropriate cases.
posted by Cool Papa Bell at 4:25 PM on November 23, 2015

Best answer: For a quite informative and very readable book that lays out the basics of American legal thinking on slander and libel, I recommend the late Anthony Lewis' "Make No Law: The Sullivan Case and the First Amendment"

It begins with the story of a critical 20th-century freedom-of-the-press Supreme Court decision that significantly redefined the standards for libel (Sullivan v. New York Times) and proceeds to trace the development of first amendment law through many subsequent decisions.

And just so you understand why several posters have reacted strongly against your desire to see Trump's and Carson's speech criminalized -- suppression of speech has a very complicated history and often was used for bad purposes -- not uncommonly by the powerful to harass anyone who spoke critically. The Sullivan case (that is the start of the book I recommended above) began with an effort by southern segregationists to silence criticism from the national press, a position which found success in the courts of Alabama.
posted by Nerd of the North at 4:58 PM on November 23, 2015 [5 favorites]

"I do not agree with what you say; however, I will defend to the death your right to say it." Kinda the whole point of America.
posted by The Almighty Mommy Goddess at 5:26 PM on November 23, 2015 [4 favorites]

This is an extraordinarily bad idea. Let's not open this door, because it will never shut again, and there are monsters on the other side.

If you believe in free speech, then you must accept that some people will say things you find repugnant.
posted by Chocolate Pickle at 6:30 PM on November 23, 2015 [3 favorites]

Not only would it be very hard to get them charged with any sort of crime but the police have an actual responsibility to protect people making offensive speech. See especially 'Heckler's Veto' and this analysis of a relevant case.
posted by Confess, Fletch at 6:58 PM on November 23, 2015 [2 favorites]

Best answer: I just want to add that, although there are compelling reasons for the US position, a number of other Western liberal democracies (the UK, France, Germany) have had hate speech legislation for a few decades now and our liberal and democratic institutions have survived to date. There are good reasons for the US view, but I think the "legislating hate speech will mean the fall of democracy/liberty" argument is overstated - at least, if you think the UK is pretty much a liberal democracy with the same risk of falling into fascism that the US has.
posted by Aravis76 at 12:37 AM on November 24, 2015 [1 favorite]

Mod note: Quick note here: OP is asking about specifics rather than general "would this be a good idea?" so let's stick to explanations that focus on the laws and judgements regarding slander, libel, harassment, threats, and intimidation as they relate to the context, and the general question of "is it possible for a person to be arrested for their words against a protected class?" Thanks, all.
posted by taz (staff) at 1:24 AM on November 24, 2015

Response by poster: Thanks for all your answers so far. To clarify, I was interested in understanding the balance between free speech and the oppressive effects of influential speakers on protected classes (religion, gender, race, etc, from the Civil Rights Act and other legislation).
posted by Stewriffic at 3:37 AM on November 24, 2015

There is no "balance". The scale is heavily weighted over on the "free speech" end.

So-called "hate speech" is protected speech under the First Amendment. Infringing freedom of speech requires a very compelling need, according to the Supreme Court, and they have already ruled that "oppressive effects of influential speakers on protected classes" isn't enough.
posted by Chocolate Pickle at 8:18 AM on November 24, 2015 [2 favorites]

Response by poster: So in the US there is not any balance, and in other countries there is, is what I am hearing. That's fascinating, thanks.
posted by Stewriffic at 9:44 AM on November 24, 2015

Best answer: One of the interesting things about the book I've recommended above (Lewis' "Make No Law") is that the current balance, which leans very much in the free-speech/free-press direction, is not the way things have always operated in this country -- that in fact Sullivan v. New York Times was a major change in direction for First Amendment law in the USA.

It's really quite a fascinating story if you're interested in this issue at all.
posted by Nerd of the North at 9:54 AM on November 24, 2015

This difference between the US attitude about free speech and the attitude in Europe has led to several interesting clashes.

In France it's against the law to show the swastika. Someone posted an auction for Nazi memorabilia (medals and suchlike) to EBay in the US, which of course is easily accessible from France. An activist group in France sued in French court and got a judge there to issue a court order to EBay to force them to take the auction down. EBay went to US federal court, and the US judge told the French judge to take a hike. (Not literally, but his judgment in the case made very clear that French law had no jurisdiction in the US and could not be used to infringe basic freedoms in the US.)

There was also a treaty about internet content which was being negotiated about 15 years ago, and the Europeans wanted to include a clause that would require all signatories to delete hate speech. The American negotiators told the Europeans that they couldn't agree to that because it would be unconstitutional, and the Europeans got rather angry about that. "Can't you just ignore that damned First Amendment and agree to this?" Well, no, they couldn't. I think that treaty process eventually fell apart.

Libel rules in the UK are different than in the US. In the US, it is never libelous to tell the truth, even if the truth is damaging. Proving what you said was true is an absolute defense in the US. But in the UK, you can still lose a libel suit even if you can prove that what you said was true. This has led to jurisdiction shopping, where people who think they've been libeled will file in the UK because they know their suit would be thrown out of court in the US.

Islamic nations have been trying for a long time to get everyone in the world to agree to ban "defamation of religion", but the US never agrees.

Generally it has led to the US internet servers being something of a safe haven for people elsewhere in the world to express their views, which often makes authorities elsewhere angry. That's one of the reasons for the Great Firewall of China, for instance. Such local censorship efforts have generally been less than successful, and even with all the resources China has thrown at the problem, the Great Firewall hasn't been a great success.
posted by Chocolate Pickle at 3:53 PM on November 25, 2015

Truth is a defence to defamation in England and Wales, as it is in the US; the burden of proof is on the defendant to show his statement is true, rather than on the plaintiff to show that it is false, but a defendant who can show his statement is true escapes liability in both jurisdictions.

The main difference between the US and the UK, so far as I understand it, is the Sullivan test in the US: on matters of public concern involving public figures, statements can't be defamatory just because they are harmful to the plaintiff's reputation and false. They will only be defamatory if the defendant knew they were false or was reckless about their truth - the burden is on the plaintiff to show that the defendant was malicious, not on the defendant to show that he wasn't.

So, if Trump had said a specific named Muslim politician had celebrated the 9/11 attacks, that would be defamatory in England unless Trump could affirmatively prove that the celebration had really happened. In the US, under Sullivan, it would only be defamatory if the Muslim politician could show that Trump knew he hadn't celebrated or didn't care if he had or hadn't. Trump's "I thought I remembered seeing it on TV" style arguments would mean that no defamation had taken place if the jury believed him; in England, it wouldn't matter how he had come to his false belief, he would be liable for publishing it without being able to prove it was true.
posted by Aravis76 at 11:35 PM on November 25, 2015