As some call for political foes to be locked up, where's the line between free speech and threats?

State Capitol
Posted at 6:49 PM, Feb 22, 2022
and last updated 2022-02-22 20:56:36-05

DENVER — In politics, language matters. It can be inspiring, moving entire crowds to vote or support a position. It can also be ugly or downright demeaning, with mudslinging and name-calling.

In more recent years, some of that language has included calls to silence or even imprison political opponents.

During a recent FEC United meeting in Castle Rock, some called for the imprisonment of Secretary of State Jenna Griswold. Members of the audience chanted, “Lock her up,” as one speaker questioned the results of the 2020 presidential election.

“Give her due process and justice and I think if you are involved in election fraud, you deserve to hang,” said Shawn Smith. “Sometimes the old ways are the best ways. Some people say I’m endorsing violence. I’m not endorsing violence. I’m saying once you put your hand on a hot stove, you get burned and you ought to see it coming and that’s what happens to tyrants.”

This is not the first time Griswold has heard language like this before. In December, she asked state lawmakers for $200,000 annually for guards and other security-related measures after receiving escalating threats over her advocacy of elections security.

Nearly two weeks later at a Colorado Conservative Patriot Alliance conference, a gubernatorial candidate used similar language to call for the imprisonment of Governor Jared Polis.

“I believe if elected officials break the law, there’s one place for them," said Danielle Neuschwanger. "Let me remind them what a jail cell looks like. When Governor Polis is ruining our economy and taking money out of your pockets and lining marijuana companies' pockets, I believe he belongs in a jail cell."

When does free speech go too far?

Despite the harsh language and calls for the imprisonment of political foes, speech like this isn’t actually illegal, according to Alan Chen, a law professor at the University of Denver Sturm College of Law.

“As extreme as those forms of expression are, they don't actually meet the requirements of showing a true intent to commit an unlawful act of violence,” Chen said.

The First Amendment offers vast amounts of protection for free speech, but it does have some limitation. Speech is not considered to be protected when it is considered a "true threat." The U.S. Supreme Court has defined true threats as a serious expression of an intent to commit an unlawful act of violence against a particular individual or a group of individuals.

“Obviously, many of these people aren't really in a position to imprison or arrest public officials, so that makes the threat less realistic and therefore less of a concern,” Chen said.

Something else that is not considered protected speech is incitement, when someone uses language to encourage or incite another person to commit an unlawful act. It can be difficult to prove intent versus political hyperbole, though.

However, political rhetoric like this is not necessarily new in the context of the country’s political history.

“We forget that heated political rhetoric has been going on since at least the late 1700s in the United States,” Chen said. “Throughout history, politicians have used hyperbole, exaggeration, and even something that sounds dangerous to sort of make their views known.”

Just because it’s legal, is it right?

While the language may be legal, both Democratic and Republican state parties have come out against threatening rhetoric.

“As chairman of the Colorado Republican Party, I have condemned any violence or threats of violence for the purpose of political means,” said Kristi Burton Brown, chairwoman of the Colorado Republican Party.

Burton Brown says the voters she has spoken with want less rhetoric from both sides of the aisle and more focus on the issues. She also says she doesn’t believe threatening language is an effective political tool to get elected, but says people from both sides have participated in the harsh language in the past.

“Our stance is violence should never be a part of political discourse,” said Howard Chou, vice chair of the Colorado Democratic Party. “Coming out with a violent type of attack or calling other people to be hanged, we're going down a slippery slope that's really going to incite a kind of discourse ... that's very un-American. It's very disturbing, and it's going to lead to a trend of more violent action.”

However, political science professors say they have seen this type of vitriol ramp up in recent months and years, not only with threatening language, but also with attempts to delegitimize other candidates.

“You don't just run against someone, you lock them up. You try and essentially just take people out of society, and that's a dangerous area,” said Seth Masket, a professor of political science and director of the Center on American Politics at the University of Denver. “All those are things that are just sort of warning signs that lead to democratic decline. They lead to elections being increasingly contested.”

Masket says sometimes political figures will use this language strategically just to rally their base. However, that rhetoric from politicians can sometimes inspire some of their supporters to try to take matters into their own hands. In 2017, a left-leaning activist shot U.S. Congressman Steve Scalise and several others during a Republican baseball team practice. In 2020, a group of far-right men plotted to kidnap Michigan Governor Gretchen Whitmer but were caught.

“Whether it's treason and hanging or violence aimed at particular public officials, it does have the potential to become reality,” said Robert Preuhs, chair of the political science department at Metropolitan State University of Denver.

There is a balance between free speech and threats. Preuhs believes protected speech is an important piece of any democracy, but it comes with downsides.

“It's fundamental part of what establishes a democracy, but at the same time there's always that risk,” he said.

With the 2022 midterm elections getting closer, the political partisanship and harsh language is likely to increase as both sides vie to get their candidates elected.