(This was originally posted on the Bilerico Project, America's best LGBT blog, by trangender workplace issues consultant and law professor Dr. Jillian T. Weiss.)

It was a beautiful fall day as my partner and I drove upstate from New York City to enjoy the change of seasons in Northeast U.S.A. this past weekend.  We enjoyed looking at the glorious colors of the foliage in my car, proudly emblazoned with an “Obama '08” sticker on the rear bumper of my Jeep.  

Suddenly, from hundreds of feet behind, a red SUV accelerated madly, blowing the horn continuously as it careened within inches of our bumper. We were traveling at about 60 miles per hour, and just entering a sharp exit curve that required slowing to a speed limit of 40 mph.  This is a dangerous situation for any vehicle, but especially to roll-over prone vehicles like my boxy, high and narrow Jeep. My heart pounded and my knuckles whitened as I wrestled the steering wheel into the curve. I slowed down to accommodate the steeply-banked turn, hoping the maniac behind me would slow down enough to avoid an accident.  Instead, the red SUV moved even closer and the continuous horn blaring did not cease.

My partner and I were both frightened — what kind of nutcase were we dealing with?  Would there be an accident?  Were we dealing with one of those deadly road rage situations you read about in the paper?  What had angered this person to the point of reckless high-speed driving? As we would find out in moments, the answer lay in the “Obama '08” bumper sticker on the back of my car.

Meanwhile, hundreds of miles south in Washington, D.C., Senator McCain is expressing “outrage” at the remarks of Rep. John Lewis of Georgia, a revered civil rights leader who witnessed the terrible violence visited upon African-Americans and those who stood with them in the segregation years.

“What I am seeing reminds me too much of another destructive period in American history. Sen. McCain and Gov. Palin are sowing the seeds of hatred and division, and there is no need for this hostility in our political discourse,” Lewis said in a statement.

“George Wallace never threw a bomb. He never fired a gun, but he created the climate and the conditions that encouraged vicious attacks against innocent Americans who were simply trying to exercise their constitutional rights. Because of this atmosphere of hate, four little girls were killed on Sunday morning when a church was bombed in Birmingham, Alabama,” wrote the Democrat.

Right Wing Rhetoric

I googled “Obama Arab,” and came up with this as the first result:

Kenneth Lamb, journalist of some note, posits an interesting argument to Obama Hussein's roots on his blog, Reading Between the Lines . Please go here and read it all.Yes, it's important. Add it to the troubling pot of where Obama Hussein's allegiances lie. Obama Hussein, descendant from Arab slave traders. Ouch. Spin that.

That's from a blog called “Atlas Shrugs,” which has the following as its byline:  

Western Civilization hangs in the balance. This blog is part of the solution. Get your heads out of the sand and fight the Great Fight. The Jew may be the canary in the coal mine, but you, my friends, will be next. Changing the World, one word at a time…Citizen Soldier

I gather from this that the Citizen Soldier should “do something” if he or she wishes to save Western Civilization from the dangerous effects of an Arab slaver as president.  Hmm, let's see, if I were your average Turner Diaries-reading right wing extremist with strong NRA beliefs, what would I think of to do?  What would Timothy McVeigh do?

I googled “Obama terrorist” and came up with this as the first entry:

Obama's Terrorist Connection – William Ayers  This video, which has almost 140,000 views, is only one of many on the internet.  It intersperses dramatic news footage of 1960's bombings and Weather Underground members advocating violence with pictures of Obama and misleading text suggesting that he was very close to Ayers despite knowing of Ayers' background. The comments include a number of equally racist and violent sentiments, such as



If obama becomes president he will probably get assassinated the first week by some red neck.

There are many other comments that imply that the election of Obama is going to result in the death of Americans through terrorism.  

The McCain campaign is stoking these fires by harping on the idea that Obama has terrorist ties, and claiming that any association, no matter how tenuous, is a matter for fair comment. These tenuous disclaimers do nothing to quell the violence they raise in American hearts.  

Free Speech, George Wallace and “Fighting Words”

McCain expressed outrage that his campaign's assertions about Obama's “terrorist” ties should be likened to those of George Wallace, which, as Rep. Lewis correctly noted, “created the climate and the conditions that encouraged vicious attacks” against African-Americans in the 1960s. While Senator McCain and Governor Palin insist that they have the right to raise Obama's “terrorist associations,” they are refusing any responsibility for creating a climate in which violence might be seen as justified.  Thus, while decrying terrorism themselves, they are inciting violence against Senator Obama — and cars with Obama bumper stickers — with “fighting words” like “terrorist.”  

The words “Sen. Obama is a terrorist” are “fighting words.”  “Fighting words” are words generally expressed to incite hatred or violence and to place the targets of the words in danger of harm. This idea was first defined by the U.S. Supreme Court in a 1942 decision (Chaplinsky v. New Hampshire), in which the Court was required to decide whether calling someone a “fascist” and a “racketeer” constituted free speech or disorderly conduct. The Court said it wasn't a freedom of speech issue.     

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting words” those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

Repeatedly using words that suggest that Senator Obama is a terrorist, even though the words, when parsed in Mrs. Grundy's English class don't quite add up to that, is not protected by the First Amendment.  

“Terrorist” is not merely a pejorative term like “soft on crime” or “lefty.”  Consider the case of Nadar Sokanvar, who told co-workers on the first anniversary of 9/11 that he thought the U.S. would be hit by terrorists.  He was convicted of disorderly conduct and sentenced to 30 days in jail for saying that.  The court held that the main issue is a “perceived or real threat to the safety of others,” and that the key factor was that others believed their safety was at risk as a result of the statement. (98 P.3d 303)  Consider the case of Reggie Upshaw, who gave a public speech that he supported the terrorist attacks of 9/11 — he was thrown in jail for disorderly conduct and inciting a riot.  (741 N.Y.S.2d 664) The judge upheld the charge, noting that it is necessary to consider the defendant's words and deeds in the context in which he spoke and acted.  

When McCain and Palin and their campaign create a perception that Senator Obama is a terrorist whose election would threaten the lives and safety of Americans, and they know that their campaign rhetoric is creating a condition in which others are responding to that threat with violence, then their speech is no longer in the realm of free speech.  It moves into a much darker territory — the territory of fighting words, of inciting a riot.

McCain and The Man In The Red Jeep

After accelerating at high speed towards our car on a steeply banked highway exit, and blowing his horn continuously for a minute or so while inches from my bumper, the red jeep swerved to the right and stepped on the accelerator.  As it pulled even with our car, the window opened and a man in his forties with tattoos on his arm leaned out.  He screamed something towards my partner, who was sitting frozen in her seat.  It took us a moment to recognize it as “Don't vote for a black man!”  

He then stepped on the gas and swerved in front of our car, cutting us off.  As I stepped on the brake, he stuck his arm out the window and raised his middle finger, and I let him go.  Feeling very shaken, I memorized his plate number and my partner wrote it down.  We discussed calling the police, but I felt that filing a police report would be tantamount to giving this dangerous thug our names and addresses.  

I was shocked that afternoon to hear Michelangelo Signorile having a discussion with Naomi Wolf on his Sirius OutQ radio show about how one mark of an increasingly right-wing society is seemingly random attacks by ordinary citizens on their opponents.  Michelangelo brought up the fact that a number of incidents of intimidation against Obama supporters have been reported in the national press.

Were the enraged acts of the man in the red jeep just the acts of an individual, with which McCain and Palin and their accusations of “terrorism” against Obama are unlinked?  I say no.  

I say that John McCain, by encouraging his supporters to call Senator Obama a terrorist, whose election will result in American deaths by terrorists, is taking the same road as George Wallace.  

The subject is different — yes.  Wallace advocated racial segregation, and McCain does not advocate racial segregation.  McCain does not espouse racist ideology.  But that is beside the point.  While it was not John McCain or Sarah Palin in the red jeep behind me, it is they who “sowed the seeds of hatred and division” and “created the climate and the conditions that encouraged that vicious attack.”  As the courts said in the cases of Nadar Sokanvar and Reggie Upshaw, a perceived threat may be dangerous, and the context of violence moves speech from politics into incitement to riot.  

Of course, John McCain and Sarah Palin aren't on trial for disorderly conduct and incitement to riot, nor should they be.  But neither should be claiming “outrage” at the suggestion of Rep. John Lewis that their “Obama is a terrorist” line is contributing to an atmosphere in which violence is becoming more likely.

Am I exaggerating?  Go ask the man in the red jeep.

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