False Moral Equivalence

The argument of moral equivalence is used a lot, especially on the left. How can we object to Saddam draining the Tigris-Euphrates marshes to starve out the Shiites of southern Iraq? After all, land developers are draining swamps in Miami for new subdivisions all the time!

It is currently being used in the matter of Kathy Griffin having herself photographed with a mockup of Trump’s severed head, and Montana congressional candidate (now Congressman) Gianforte apparently physically assaulting a reporter. How can the right maintain that it is for free speech, and condemn the left for shutting down speakers, and then condemn Griffin? How can the right condemn the left for political violence, and remain silent on Ginaforte’s assault?

Obviously conceding the point, many right-wing commentators have rushed to condemn Ginaforte in the strongest terms, and have predicated criticism of Griffin by stressing her absolute right to do what she did. Tucker Carlson, for example, limited his criticism to the charge that it was not funny.

I disagree. I see no equivalence here.

I believe I am what is called a “free speech absolutist,” but even I—even we—see some limits on free speech. Slander and libel are obvious examples. Speech calculated to cause physical harm—shouting “Fire” in a crowded theatre, in the classic example—is not protected. Neither is advocating or ordering violence. Otherwise Charles Manson did nothing wrong, and has been unjustly convicted.

Accordingly, given that Griffin’s photograph seems to condone and even advocate a grisly murder, it is not protected speech.

More: given that she seems to be advocating the killing specifically of her country’s head of state, it is on the face of it a crime more serious than murder: high treason. The most serious crime on the books.

In Britain, high treason includes, according to the Treason Act of 1351, still in force and used for the prosecution of “Lord Haw Haw” after World War II, to having “compassed or imagined" the death of the King (head of state). Griffin’s act is obviously in this ballpark. The penalty was originally to be hanged, drawn, and quartered. It was reduced in 1998 to life in prison. In Canada, the penalty is still death—an exception to the general abolition of capital punishment.

Traitor being drawn

The 1351 Treason Act is the direct ancestor and legal precedent for American laws against threatening harm to the President as head of state. In 1942, for example, a defendant was convicted for saying that someone should “hang President Roosevelt.” To threaten to kill the head of state is a profound attack on the civil order, and threatens to throw society into chaos.

If this law is consistently enforced, it is, according to law enforcement, because those who call for the murder of the President most often turn out to be mentally ill. Or judges tend to find them so.

This is clearly not the case here. This is not some anonymous loonie, but a citizen of some prominence and public reputation. The more dangerous, accordingly, the crime.

If the case were brought to trial, I expect that Griffin would not be convicted. She has the obvious defense of being generally known as a comedian. It would be reasonable for her counsel to argue that her audience understood the matter as a joke, not a serious intent to harm.

Nevertheless, this is the crime with which she is flirting here: treason.

And, even though she is probably safe as a legal matter, her actions do indeed incline to undermine the functioning of government, causing in some measure the harm that the treason laws are there to prevent. Her moral case is shakier than her legal one.

It is also hard to believe that a professional comedian really thought the image was funny. Or her audience. Could she really be so inept in her craft?

As to Ginaforte, the case is more or less the opposite. It does look as though he is guilty of the crime of assault, and so ought to be prosecuted.

However, his moral case is stronger than his legal one.

In common law, and American statute law, it is crucially important who threw the first punch. It seems that Gianforte did. That makes him the assailant in law.

However, this is a legal issue, not a moral one. His deed was malum prohibitum, not malum in se. Laws in other jurisdictions are different on this point, and are at least as logical. In Korea, for example, foreigners from common law countries have to be warned: not having thrown the first punch is no protection. The police do not care. The victim is whoever got the worst of the fight, and the perpetrator in law is whoever got the best of it.

This makes as much sense as the “first blow” rule. Few deliberately start a fight expecting to get beaten up. If a fight occurs, it is reasonable that whoever gets more badly hurt is not the true initiator, and whoever hurts him is the one who really started it. The victim might indeed have thrown the first punch, but only under provocation. There is nothing magical here about the resort to the physical level. It is easy to provoke or force a peaceful and honourable man to violence if you know what you are doing.

Is it immoral to lose your temper? Is it immoral to be the first to use physical violence? Demonstrably not. Jesus clearly lost his temper at times; for example, when he cleared the moneychangers out of the Temple. And Jesus was without sin. 

Jesus drives the moneychangers out of the Temple.

Ergo, neither anger nor violence are sinful in themselves.

Further Biblical examples could be given: Jesus tells the apostles to go out and buy swords, which they do, and curses the scribes and Pharisees. He says that saying “raca” to your brother is as wrong as killing him. So getting physical is not the sin.

Wrath, it is true, is one of the Seven Deadly Sins; but wrath is roughly the opposite of losing your temper. It is nursing a resentment, and acting in cold blood in revenge.

It seems obvious that Gianforte’s action was not premeditated. It seems likely that he was provoked. Accordingly, the law aside, it is probable that he did nothing morally wrong. This ought to be acknowledged.

By comparison, the violence used by the Antifa member who assaulted Trump demonstrators with a bicycle lock, say, is both legally and morally wrong. The same is true of the Black Lives Matter rioters, or those who smashed windows to prevent Milo Yiannopoulos from speaking at Berkeley. It was planned, premeditated, aggressive, and in cold blood.