The left’s newest stealth attack on free speech

America’s two most important rights are free speech and the right to bear arms. Without the first, no people are free; and without the second, there is no first. Totalitarians always go after both; that is, they silence and disarm them. For decades, the left has been open in its war on the Second Amendment. They’ve struggled more with the war on speech, but they may finally have come up with a new approach that will sneak around constitutional muster.

When it comes to speech that incites violence or is otherwise imminently threatening, the law has always been clear: The threat must be very explicit and imminent for the speech to lose its First Amendment protections. At the most simplistic level, saying, “I wish so-and-so were dead” is not an actionable opinion. However, saying, “I’m going to kill so-and-so this week” or “You all need to kill so-and-so; I’ve got a plan” is criminally actionable speech. (The standard is more sensitive when speech is directed at the president, of course.)

This constitutional limitation on making (conservatives’) political speech criminally actionable has long vexed the left. They’ve trained their young acolytes that speech is violence (so much so that almost half of college students say “hate speech” should get the death penalty) but, so far, courts haven’t fallen for that gambit. Unless speech creates an imminent threat, it gets a pass.

Lately, though, the left has come up with a new concept that seeks to say that any speech that opposes leftist policies is actual and imminent “terrorism.” Or as leftist academia calls it, “stochastic terrorism.”

Christopher Rufo discusses the concept in an important City Journal essay. He begins by revealing that he is being identified as someone who is directly responsible for the attack on Paul Pelosi:

I browsed the news recently only to discover that, according to a popular science magazine, I was responsible for the attempted murder of Paul Pelosi, husband to House Speaker Nancy Pelosi.

In an opinion piece for Scientific American, writer Bryn Nelson insinuated that my factual reporting on Drag Queen Story Hour was an example of “stochastic terrorism,” which he defines as “ideologically driven hate speech” that increases the likelihood of unpredictable acts of violence.

On the night of the attack, Nelson argued, I had appeared on Tucker Carlson Tonight to discuss my reporting, and, hours later, the alleged attacker, David DePape, radicalized by “QAnon” conspiracy theories about “Democratic, Satan-worshipping pedophiles,” broke into the Pelosi residence and attacked Paul Pelosi with a hammer.

Rufo points out that he had no contact with DePape, that he did not target DePape with his communications, and that it’s highly unlikely that DePape had ever come across Chris Rufo’s words. But according to Bryn Nelson, Rufo is in the line of liability for inciting violence against Paul Pelosi. How’d he do that? “Stochastic terrorism,” of course.

The scheme works like this: left-wing media, activists, and officials designate a subject of discourse, such as Drag Queen Story Hour, off-limits; they treat any reporting on that subject as an expression of “hate speech”; and finally, if an incident of violence emerges that is related, even tangentially, to that subject, they assign guilt to their political opponents and call for the suppression of speech. The statistical concept of “stochasticity,” which means “randomly determined,” functions as a catch-all: the activists don’t have to prove causality—they simply assert it with a sophisticated turn of phrase and a vague appeal to probability.

Though framed in scientific terms, this gambit is a crude political weapon. In practice, left-wing media, activists, and officials apply the “stochastic terrorism” designation only in one direction: rightward. They never attribute fire-bombings against pro-life pregnancy centers, arson attacks against Christian churches, or the attempted assassination of a Supreme Court justice to mere argumentation of left-wing activists, such as, say, opposition to the Court’s decision in Dobbs. In those cases, the Left correctly adopts the principle that it is incitement, rather than opinion, that constitutes a crime—but conveniently forgets that standard as soon as the debate shifts to the movement’s conservative opponents.

Lately, I’ve taken to reminding people of what the President of Turkey, Recip Erdogan, was reputed to have said some twenty-plus years ago: “In the mid-1990s, the mayor of Istanbul, Recep Tayyip Erdogan, was quoted as saying, ‘Democracy is like a tram. You ride it until you arrive at your destination, then you step off.’”

The Democrats are getting ever closer to their train stop. At that point, you can expect the Constitution to morph from being the shield of citizens against a tyrannical government into being the sword of government against those citizens who refuse to get with the program.