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When Alex Jones lied hundreds of times on the air about the families of the children murdered at Sandy Hook Elementary School, the families of those dead children — suffering from harassment by Jones’ followers and tortured by his claims that they were “crisis actors” — successfully sued for damages.

But nobody died — at least among the families who sued Jones — because of his lies. Which is why he was sued civilly by the families but not charged criminally by local, state, or federal authorities.

The “You can’t yell ‘Fire!’ in a crowded theatre” exception to the First Amendment’s free speech protection usually applies to safety, to the potential or actual loss of life, and is — with justification — a very high bar to prove.

“Actual malice” and “reckless endangerment” requirements for successful criminal prosecutions lift the bar even a bit higher.

Asking somebody to kill somebody else is criminal conspiracy, and if the killing is carried out, the person who did the asking can also be charged with murder. On the other hand, saying a public figure is so vile you hope they die is protected free speech.

And that’s where things get problematic.

Multiple mass shooters in past years have cited Nazi and Republican-oriented websites, publications, authors, media figures, and politicians in their “manifestos” as well as during police interrogations, but none of those sites or their owners and administrators, authors, or politicians have been sued, shut down, or criminally prosecuted (to the best of my knowledge).

There’s a thin but entirely appropriate line between hateful, lying, racist, or bigoted free speech — which a free and democratic society protects — and direct incitement to violence.

Which raises the question: when people tell lies that lead straight to the death of other people — or to another serious crime like sedition committed while trying to overthrow an election and thus our nation’s government — should they face criminal liability?

Fox “News” hosts, just like Alex Jones, lied hundreds of times on the air, echoing Donald Trump’s claim that Democrats had stolen the 2020 election from him. They knew they were lying, according to reporting from The Washington Post based on internal communications released by Dominion Voting Systems’ attorneys, and Dominion asserts those intentional lies — which they allege were done simply to make money for the network — measurably harmed the company’s reputation and business.

Like Jones, Fox and its parent company News Corp, are being held to account in civil court.

But was what Fox did merit criminal prosecution? And, if so, what about the hundreds of other Republican politicians, media figures, and news sites who went along with and echoed Trump’s lies, knowing full well they were not true?

Glenn Kirschner is no slouch. For almost a quarter century he served as a federal prosecutor in the U.S. Attorney’s Office for the District of Columbia, retiring as head of the Homicide Section. He knows the law and he knows murder and manslaughter — and conspiracies that lead to both — when he sees them.

Which is why heads were turning across Washington, DC this past weekend when Kirshner, on Katie Phang’s Sunday show on MSNBC, came right out and said it, speaking specifically about Fox “News”:

“[I]ndeed, they did incite imminent violence on January 6th.”

That’s quite a different standard than the type of justice Alex Jones is now facing. Five people died on January 6^th, and three police officers died in the days immediately after the attempted coup from, their families allege, their injuries on that day.

Would January 6^th have even happened if Fox’s management, producers, and hosts hadn’t pushed Trump’s lie almost 800 times leading up to that day (according to Media Matters)?  

How different would that day have been if, in those 9 weeks, Fox had stayed with their original call that Biden won the election fair and square?

Would Trump’s minions have ignored Fox and gone on their murderous rampage anyway, or would the event have simply been the sort of fizzle we’re seeing at Trump’s pathetic “rallies” today when only handfuls of addled boomers marinated in Qanon show up?

Former homicide prosecutor Kirschner was unambiguous in his opinion:

“Should Jack Smith begin to dig into the implications of Fox News, you know, riling up the Trump base such that Trump now has a more sort of willing, more ready, group of insurrectionists?

“And I think here’s the answer to that question: I think it’s an abdication of the federal government’s responsibility if they don’t find the right vehicle, the right organization, to dig into these problems to try to protect the American people from these faux news organizations that you know are not just innocently telling lies for entertainment purposes.

“They are telling the kind of lies that again I contend are reasonably likely to incite imminent violence and indeed they did incite imminent violence on January 6^th.  

“So does Jack Smith have adequate predication  — a fancy term for enough evidence — to begin investigating the impact that the Fox News lies had on what happened on January 6^th?

“I sure hope he concludes he does because I know the federal government is forever concerned about being criticized for trampling on First Amendment rights but I think we’ve reached a point now where we can’t just continue to turn a blind eye to faux news organizations.”

Kirschner makes an important point, one that may well be backed up by evidence. But using criminal law to prosecute media figures and a news organization — even ones that regularly trade in lies and half-truths — would cross a line we’ve only penetrated twice (in a big way) in US history.

The most recent was Woodrow Wilson’s prosecution and imprisonment of anti-World War I protestors (including Eugene Debs); the first was during the John Adams administration.

And even discussing the issue can raise troubling consequences when cranky billionaires are involved.

When the progressive Australian news site Crikey ran a June 2022 opinion piece written by their political editor, Bernard Keane, asserting the Murdoch family were “unindicted co-conspirators” in the crimes and deaths of January 6^th, Lachlan Murdoch sued the publication for a million dollars, alleging defamation.

Murdoch initially won the claim, arguing the publication had defamed him to boost its circulation, and now — if I’m reading this story from the Australian Broadcasting Corporation (ABC) correctly — wants to add several Crikey employees to his claim, leading to a new trial scheduled for October 9^th of this year.

Standards for defamation against public figures are much higher here in the US, the result of the Sullivan v NY Times Supreme Court case (which both Clarence Thomas and Neil Gorsuch have said should be overturned), so it’s unlikely Murdoch will be going after Kirschner or Phang.

And it’ll be fascinating to see if the revelations this past week from the Dominion case turn Murdoch’s claim against Crikey on its head.

Nonetheless, interfering in the operation of a free press is arguably the most difficult and problematic issue this country has faced since its inception.

Both Federalist John Adams and Democratic-Republican Thomas Jefferson, for example, hated the news coverage they were getting back in the day and Adams’ overreaction is a cautionary tale for those calling for the criminal prosecution of Fox and its hosts and executives.

It started in 1798 when Benjamin Franklin Bache, grandson of Benjamin Franklin and editor of the Philadelphia newspaper the Aurora, began to speak out against the policies of then-President John Adams.

Bache supported Vice President Thomas Jefferson’s Democratic-Republican Party (today called the Democratic Party) when John Adams led the conservative Federalists (who today would be philosophically similar to Republicans).

Bache attacked Adams in an editorial, calling the president “old, querulous, Bald, blind, crippled, Toothless Adams.” 

To be sure, Bache wasn’t the only one attacking Adams in 1798. His Aurora was one of about 20 independent newspapers aligned with Jefferson’s Democratic-Republicans, and many were openly questioning Adams’ policies and ridiculing Adams’ fondness for formality and grandeur. 

On the Federalist side, conservative newspaper editors were equally outspoken. Noah Webster wrote that Jefferson’s Democratic-Republicans were “the refuse, the sweepings of the most depraved part of mankind from the most corrupt nations on earth.” Another Federalist characterized the Democratic-Republicans as “democrats, momocrats and all other kinds of rats.” 

But while Jefferson and his Democratic-Republicans had learned to develop a thick skin, University of Missouri-Rolla history professor Larry Gragg points out in an October 1998 article in American History magazine that Bache’s writings sent Adams and his wife into a self-righteous frenzy.

Abigail wrote to her husband and others that Benjamin Franklin Bache was expressing the “malice” of a man possessed by Satan. The Democratic-Republican newspaper editors were engaging, she said, in “abuse, deception, and falsehood,” and Bache was a “lying wretch.” 

Abigail insisted that her husband and Congress must act to punish Franklin’s grandson for his “most insolent and abusive” words about her husband and his administration. His “wicked and base, violent and calumniating abuse” must be stopped, she demanded. 

Abigail Adams wrote that Bache’s “abuse” being “leveled against the Government” of the United States (her husband) could even plunge the nation into a “civil war.” 

Worked into a frenzy by the Adams’ and the rightwing Federalist newspapers of the day, Federalist senators and congressmen — who controlled both legislative houses along with the presidency — came to the defense of John Adams by passing a series of four laws that came to be known together as the Alien and Sedition Acts. 

The vote was so narrow — 44 to 41 in the House of Representatives — that in order to ensure passage the lawmakers wrote a sunset provision into their most odious parts: those laws, unless renewed, would expire the last day of John Adams’ first term of office, March 3, 1801. 

Ignoring the First Amendment to pursue his vengeance, President John Adams ordered his “unpatriotic” opponents who were writing for or publishing newspapers arrested, and specified that only Federalist judges on the Supreme Court would be both judges and jurors in their federal criminal trials. 

Bache, often referred to as “Lightning Rod Junior” after his famous grandfather, was the first to be hauled into jail (the day before the laws even became effective!), followed by New York Time Piece editor John Daly Burk, which put his paper out of business. Bache died of yellow fever while awaiting trial, and Burk accepted deportation to avoid imprisonment and then fled. 

Others didn’t avoid prison so easily. Editors of seventeen of the twenty or so Democratic-Republican-affiliated newspapers were arrested, and ten were convicted and imprisoned; many of their newspapers went out of business. 

Bache’s successor, William Duane (who both took over the newspaper and also married Bache’s widow), continued the attacks on Adams, publishing in the June 24, 1799 issue of the Aurora a private letter John Adams had written to Tench Coxe in which then-Vice President Adams admitted that there were still men influenced by Great Britain in the U.S. government.

The letter cast Adams in an embarrassing light, as it implied that Adams himself may still have British loyalties (something suspected by many, ever since his pre-revolutionary defense of British soldiers involved in the Boston Massacre), and made the quick-tempered Adams furious. 

Imprisoning his opponents in the press was only the beginning for Adams, though. Knowing Jefferson would mount a challenge to his presidency in 1800, he and the Federalists hatched a plot to pass secret legislation that would have disputed presidential elections decided “in secret” and “behind closed doors.” 

Duane got evidence of the plot, and published it just after having published the letter that so infuriated Adams.

It was altogether too much for the president who didn’t want to let go of his power: Adams had Duane arrested and hauled before the Court on Sedition Act charges.

Duane would have stayed in jail had not Thomas Jefferson intervened, letting Duane leave jail to “consult his attorney.” Duane went into hiding until the end of the Adams’ presidency. 

Emboldened, the conservative Federalists reached out beyond just newspaper editors. 

When Congress let out in July of 1798, John and Abigail Adams made the trip home to Braintree, Massachusetts in their customary fashion — in fancy carriages as part of a parade, with each city they passed through firing cannons and ringing church bells.

(The Federalists were, after all, as Jefferson said, the party of “the rich and the well born.” Although Adams wasn’t one of the super-rich, he basked in their approval and adopted royal-like trappings, later discarded by Jefferson when elected president in 1800 as Dan Sisson and I detail in our book The American Revolution of 1800.)

As the Adams family entourage, full of pomp and ceremony, passed through Newark, New Jersey, a man named Luther Baldwin was sitting in a tavern and probably quite unaware that he was about to make a fateful comment that would help change history. 

As Adams rode by, soldiers manning the Newark cannons loudly shouted the Adams-mandated chant, “Behold the chief who now commands!” and fired their salutes. Hearing the cannon fire as Adams drove by outside the bar, in a moment of drunken candor Luther Baldwin said:

“There goes the President and they are firing at his arse.” Baldwin further compounded his sin by adding that, “I do not care if they fire thro’ his arse!” 

The tavern’s owner, a Federalist named John Burnet, overheard the remark and turned Baldwin in to Adams’ thought police: the hapless drunk was arrested, convicted, and imprisoned for uttering “seditious words tending to defame the President and Government of the United States.” 

The Alien and Sedition Acts reflected the new attitude Adams and his wife had brought to Washington D.C. in 1796, a take-no-prisoners type of politics in which no opposition was tolerated. 

After attacking the media, Adams turned his wrath on opposition politicians, causing Vice President Jefferson to refuse to visit the White House or speak in person to President Adams for the rest of their lives (they reconciled when elderly, but entirely by mailed correspondence).

For example, on January 30, 1798, Vermont’s Congressman Matthew Lyon spoke out on the floor of the House against “the malign influence of Connecticut politicians.”

Charging that Adams’ and the Federalists only served the interests of the rich and had “acted in opposition to the interests and opinions of nine-tenths of their constituents,” Lyon infuriated the conservatives. 

The situation simmered for two weeks, and on the morning of February 15, 1798, Federalist anger reached a boiling point when conservative Connecticut Congressman Roger Griswold attacked Lyon on the House floor with a hickory cane.

As Congressman George Thatcher wrote in a letter now held at the Massachusetts Historical Society:

“Mr. Griswald [sic] [was] laying on blows with all his might upon Mr. Lyon. Griswald continued his blows on the head, shoulder, & arms of Lyon, [who was] protecting his head & face as well as he could. Griswald tripped Lyon & threw him on the floor & gave him one or two [more] blows in the face.” 

In sharp contrast to his predecessor George Washington, America’s second president had succeeded in creating an atmosphere of fear and division in the new republic, and it brought out the worst in his conservative supporters.

Across the new nation, Federalist mobs and Federalist-controlled police and militia attacked Democratic-Republican newspapers and shouted down or threatened individuals who dared speak out in public against President Adams. 

Even members of Congress were not immune from the long arm of Adams’ Alien and Sedition Acts.

When Congressman Lyon — already hated by the Federalists for his opposition to the law, and recently caned in Congress by Federalist Roger Griswold — wrote a newspaper article pointing out Adams’ “continual grasp for power” and suggesting that Adams had an “unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice,” Federalists convened a federal grand jury and indicted Congressman Lyon for bringing “the President and government of the United States into contempt.” 

Lyon, who had served in the Continental Army during the Revolutionary War, was led through the town of Vergennes, Vermont in shackles. He ran for re-election from his 12x16-foot Vergennes jail cell and handily won his seat.

“It is quite a new kind of jargon,” Lyon wrote from jail to his constituents, “to call a Representative of the People an Opposer of the Government because he does not, as a legislator, advocate and acquiesce in every proposition that comes from the Executive.”

The moral of the story is that even when we hate the news, even when we know publications are lying, we must use the power of government against those publications with great care and caution.

As Jefferson wrote to his friend Edward Carrington after having been particularly savaged by newspapers of his day:

“They may be led astray for a moment, but will soon correct themselves. The people are the only censors of their governors: and even their errors will tend to keep these to the true principles of their institution. To punish these errors too severely would be to suppress the only safeguard of the public liberty.

“The way to prevent these irregular interpositions of the people is to give them full information of their affairs thro' the channel of the public papers, and to contrive that those papers should penetrate the whole mass of the people.

“The basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter.”

From the founding of our republic, protecting the rights of the press and even of “hated” free speech has been a cornerstone of American democracy.

If it’s proven in court that Fox and its owners, executives, and hosts conspired to mislead people in a way that amplified January 6^th to maintain or enhance the company’s profits — and recent revelations suggest that’s the case — they’ll be held to account in civil court.

If Dominion prevails, the families of those who died or were injured — over 140 police officers ended up hospitalized, among many others — will almost certainly be following in Dominion’s footsteps.

And, as Jefferson noted, the “channel of the public papers” are now informing Americans about the alleged perfidy at News Corp.

While I have tremendous respect for Glenn Kirschner, and it’ll be fascinating to see if Jack Smith draws Fox into his investigations, my call is for the civil process to work itself out before the heavy hand of the Justice Department intervenes.