Apparently, Jeffrey Toobin is back, after a temporary exile for things I am just going to not discuss – you can Google it. In a way, I’m glad that Toobin is back because it is an example of something like public forgiveness, a counter-example to the cancel culture tendencies that have become so dominant.
But Toobin himself rubs me the wrong way. I’m pretty sure I know why, too. It was reading The Run of His Life: The People v. O.J. Simpson, which marked Toobin’s big break into the mainstream. The book is excellent, but that’s not the issue. The issue is Toobin’s perspective, the way he manages to make every single person in the book come across as an idiot. Toobin finds people’s flaws and he amplifies them with an obnoxious smugness. The book resonates as an example of how you might expect a Harvard Law graduate to perceive the common person.
What He Says About Donald Trump
Anyway, I say Toobin appears to be back after his mini-exile because The New York Times just ran a Toobin opinion piece titled ‘Donald Trump Is Going To Get Someone Killed.’ The piece asks how Trump’s responses to his pending criminal and civil court cases will affect others, “especially those who are now targets of his wrath.”
“The former president’s current language represents an imminent threat to his rhetorical targets and those around him,” Toobin wrote. “Mr. Trump has always employed invective as a political tool, but as his days of courtroom reckoning have arrived, his rhetoric has grown more menacing.”
Toobin cites a variety of Trump’s social media posts: suggesting that General Mark Milley could have been executed; that shoplifters should be shot; that Justice Engoron’s law clerk is dating Senator Chuck Schumer; et cetera.
“Mr. Trump’s adversaries often look to the courts for relief, but there’s no remedy there for his tirades,” Toobin wrote. “The First Amendment protects all but the most explicit incitements to violence, so Mr. Trump has little reason to fear that prosecutors will bring charges against him for those remarks.”
First Amendment Protections
Toobin seems to lament that the First Amendment is so expansively protective – a common left-wing take when referring to Trump’s rhetoric, yet still odd to see coming from a journalist as journalists have traditionally been the First Amendment’s most ardent defenders.
“Angry people, especially those predisposed toward violence, can be set off by encouragement that falls well short of the legal standard for criminal incitement,” Toobin wrote, suggesting that Trump’s social media posts would set someone off. “To see the consequences of such constitutionally protected provocation, one need only look to the case of Timothy McVeigh,” who is responsible for the Oklahoma City bombing that killed 168 people in 1995.
Toobin, in part, blames McVeigh’s actions on the mid-90s rhetoric of Newt Gingrich and Rush Limbaugh. I agree with Toobin’s implication that Gingrich, Limbaugh, and Trump have all had a negative effect on political discourse – and even society itself – but I have trouble with Toobin’s critique of First Amendment protections.
“Mr. Trump, like Mr. Limbaugh before him, uses the Constitution’s broad protections for inflammatory speech as a shield against any sort of accountability,” Toobin wrote. “The implicit argument is that unless a criminal prosecution establishes a direct cause and effect between his words and the violence that follows, then there is no connection at all. But that isn’t true, nor can it be.”
And that’s where Toobin loses me. What is he suggesting? Should we hold Rush Limbaugh legally responsible for the Oklahoma City bombing? As distasteful as Limbaugh might be, the concept is ridiculous. Nor is Toobin’s insistence, that the next tragedy will be Trump’s fault, fair or accurate. Trump is one part of a media and social ecosystem that has veered toward a regrettably violent and cynical place. But you know what, so is Jeffrey Toobin, who helped to make a viscous double murder the biggest story of the entire 1990s.
Harrison Kass is the Senior Editor and opinion writer at 19FortyFive. An attorney, pilot, guitarist, and minor pro hockey player, Harrison joined the US Air Force as a Pilot Trainee but was medically discharged. Harrison holds a BA from Lake Forest College, a JD from the University of Oregon, and an MA from New York University. Harrison listens to Dokken.