Kellyanne Conway, one of the many women and men among Donald Trump’s gender-neutral harem of Stepford Wives, seemed a more-or-less harmless twit when she was merely a spokesperson for an unserious assclown with little chance of ascending above the rank of D-List reality-TV also-ran.
But alas, Conway and her posse accidentally won, and now Kellyanne Conway is going to be not just a shill for a mindless narcissist who is also merely a private citizen, but part of that same mindless narcissist’s government. Quite obviously, a person inside government is far more a threat to our freedom than anyone outside it, and so Conway has gone from easily ignored bit player in an innocuous sideshow to impossible-to-ignore ringleader in a stampeding circus act.
To that end, it is now incumbent on Conway to know what she’s talking about when something she says conjures ideations of government-sanctioned retribution against common citizens. To wit, a mere political hack may misuse the word inciting. A presidential advisor, on the other hand, may not.
Here’s why. The term incitement is not just a word that commoners use in their every-day squabbles. It is also a legal term of art, which is to say that when it is used by an official of the government, it means something very specific and even actionable. So a person who is an official of the government, even if she misused the term before, is not allowed to misuse the term anymore. We have good news for Kellyanne Conway: the Chimps are here to help.
Here’s what Conway reportedly said today about Meryl Streep’s already-famous takedown of Trump:
We have to now form a government, and I’m concerned that somebody with a platform like Meryl Streep is also, I think, inciting people’s worst instincts. When she won’t get up there and say, ‘I don’t like it, but let’s try to support him and see where we can find some common ground with him,’ which [Trump] has actually done from moment one. (Emphasis ours.)
What Conway might not know about what she herself said is that when somebody in the government accuses somebody outside the government of inciting, she is – and we are not kidding about this – accusing that person of engaging in speech that is not protected under the First Amendment and for which the speaker may be prosecuted and punished. (See Brandenburg v Ohio.) So if a person in government does not mean to suggest that a private citizen’s speech is unprotected by the First Amendment and prosecutable and punishable by the government, then she should NOT use the word inciting.
Conway’s mistake here, however, goes well beyond her use of a loaded legal term. It includes not only the ill-advised use of the word in the first place, but also its utter misapplication given the nature of what Meryl Streep actually said. Here is Meryl Streep’s speech at the Golden Globes (which engendered not only Conway’s outburst but also, naturally, a Donald-Trump tweetstorm):
So Streep said that she was disappointed in Trump’s vile mockery of a physically disabled reporter who was not in any position to fight back against Trump in any kind of a media-moderated fair fight.
Did Streep’s speech rise to the level of incitement, as Conway said? Not even close.
The elements of incitement are as follows: 1) advocacy; 2) for illegal conduct; 3) that will occur immediately; 4) under circumstances where the audience addressed is reasonably likely to commit the crime for whose commission the speaker advocated. (See, again, Brandenburg, above.)
With regard to Streep’s speech, we don’t get past element number one (advocacy). That’s because Meryl Streep did not ask anyone to do anything (and that would be the definition of advocacy). To the extent that she even arguably advocated that anybody do anything, what was that anything? Did she advocate that people feel bad about Donald Trump being a punk? There’s nothing illegal about that. And what are we to suppose Streep’s audience is going to do as a result of her “incitement”? Commit the crime of civic loathing or moral antipathy?
No matter how one uses the word inciting – be it the legal term or the colloquial one – the word, as applied to anything Meryl Streep said, is inapposite to the point of absurdity.
Streep did not engage in incitement. Conway did engage in linguistic malpractice.