Michael Dorf: Are Americans Turning a Blind Eye to Campaign Violence?

This article first appeared on the Verdict site.

Despite the news that Republican Greg Gianforte has been charged with misdemeanor assault for body-slamming a reporter, last week Montana voters chose the GOP newcomer to fill the state's vacant seat in the House of Representatives.

Pundits immediately began assessing the implications of the election for the 2018 midterms and beyond.

Was Gianforte's relatively slim six-percent margin over singing cowboy Rob Quist a harbinger of Democratic success elsewhere, given the strongly Republican lean of the state? Or do idiosyncratic factors about this particular race and the Montana electorate limit its utility as a predictive tool?

No doubt those are important political questions, but in this column I shall focus on the voters' apparent non-reaction to the assault and its disturbing implications for freedom of the press.


Any inferences we draw about freedom of the press from the Montana special election must be tempered by a number of caveats. For one thing, roughly half of the voters cast their ballots before the assault story broke. It is possible that some of them would have voted differently if they had waited until election day.

Yet early voting probably played a minor role in diminishing the impact of the assault charge. People who vote early tend to be substantially more committed to their candidate than those who vote on election day. Thus, the people most susceptible to the influence of late-breaking news had not yet voted when the assault story broke.

To be sure, that does not mean that all or even most of the voters who selected Gianforte after the assault charge was announced approved of Gianforte's conduct. One hopes that most people who voted for Gianforte after the assault charge was announced did so despite the charge rather than because of it.

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Such a course of conduct would have been instrumentally rational. Suppose you strongly support a candidate because of his stance on some issue you care about—taxes, environmental regulation, or abortion, say. Even if you learn that the candidate is a criminal, you might vote for him nonetheless because you fear that his main rival would pursue policies you oppose.

You cast your ballot as you do, albeit unenthusiastically, because you realize that in a two-party system the question is not whether the candidate is right for the job but whether (by your lights) he is better, or simply less bad, for the job than the most likely alternative.

There is also a technical legal reason we should not equate Gianforte's victory with an assault on freedom of the press: the First Amendment applies only to censorship by the government . Even though Gianforte was running for public office when he assaulted Guardian reporter Ben Jacobs, Gianforte was still acting as a private citizen.

Free Press Culture

Notwithstanding the foregoing caveats, the Gianforte victory is disturbing. Even if most of Gianforte's supporters disapproved of his act of violence, newspaper comment boards and social media sites contained a large number of appalling expressions of approval.

Some of the approval of political violence even came from people with a substantial media profile, like right-wing provocateur Laura Ingraham, who took to Twitter to mock Jacobs for getting assaulted with the following tweet: "Did anyone get his lunch money stolen today and then run to tell the recess monitor?"

Republican Greg Gianforte at Lions Park on May 23, 2017 in Great Falls, Montana. Justin Sullivan/Getty

Then, in what might or might not have been intended as a reference to Gianforte's assault on Jacobs, Texas Governor Greg Abbott joked about shooting journalists.

Although these despicable sentiments are not relevant to the immediate legal protection for freedom of the press, they bear on our constitutional rights.

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Our constitutional culture has not yet degraded so far that Gianforte's conduct was broadly deemed acceptable—but the degradation has begun, and it starts at the top.

House Speaker Paul Ryan and House minority leader Nancy Pelosi condemned Gianforte's conduct and, after his campaign initially sought to deceive the public by blaming Jacobs, even Gianforte himself eventually apologized. But President Trump simply hailed the special election result as a "great win in Montana."

It is hardly surprising that Trump did not condemn Gianforte's conduct. Pelosi suggested that Trump is "the model" for Gianforte's behavior. Perhaps that's true, but even if not, Trump has contributed to the climate of hostility to the press that characterized the most disturbing comments by Gianforte's supporters.

All politicians and especially presidents at times find the press a nuisance and occasionally lash out. But Trump has gone considerably further. He has called the press the "enemy of the people" and currently faces a civil lawsuit for encouraging violence against protesters at a political rally.

Trump is playing with fire, and he does not even pretend to care.

In a 1944 speech, Judge Learned Hand famously stated: "Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it." Hand went on to equate "the spirit of liberty" with the kind of humble search for truth that we associate closely with the First Amendment.

Taken as a whole, the Hand speech makes the fundamental point that even such bedrock legal principles as free speech and free press rest ultimately on culture. In the long run, a society in which it is acceptable for politicians to incite violence or body-slam reporters for asking unwelcome questions will not protect freedom of the press or any other kind of freedom, regardless of what the parchment barriers of our Constitution say.

Michael C. Dorf is the Robert S. Stevens professor of law at Cornell University. He blogs at DorfOnLaw.org.

Michael Dorf: Are Americans Turning a Blind Eye to Campaign Violence? | Opinion