Planned Parenthood, Josh Feuerstein, and Criminal Culpability

On November 27, 2015, a man entered a Planned Parenthood in Colorado Springs, CO, and opened fire, killing two civilians and a police officer. I am not going to give the name of the gunman because I don’t want to give him any more publicity than he deserves. As the facts started coming out about the gunman, he became apparent that we had another deranged, White male; one who identified with the anti-abortion movement and spoke of ‘baby parts’ after being detained. I am not going to speak to his motivations, because there will be plenty of armchair psychologists to tease that out. Nor will I speak about the media’s seeming reluctance to label the gunman as a terrorist, though he definitely fits that definition in my mind. No, the focus of this piece is going to be Josh Feuerstein.

Josh Feuerstein?

Yes, the very same earnest Christian evangelical YouTube personality who started a tempest in a coffee cup with his lament against Starbucks and the unforgivable sin of issuing a plain red cup for the Holiday season instead of a design festooned with all the symbols of his imagined ‘Christian’ holiday, although most of the symbols he is railing against are of pagan origin. But I digress.

The Paul Blart Mall Cop lookalike made another video not long after the Cecil the Lion imbroglio making the case that people were hypocrites for mourning the loss of a friendly lion, but yet were not mourning the killings of millions of babies by Planned Parenthood.  The full transcript of the video is below, taken from The Friendly Atheist:

So let me get this right. Tonight, America is crying about an old lion named Cecil that was killed by some dipwad who cut his head off and left his body there. But check this out.
Planned Parenthood has hunted down millions and millions of little innocent babies, stuck a knife into the uterus, cut them, pulled them out, crushed their skull with forceps, ripped their body apart, sold their tissue, and threw them bleeding into a trash bin.
You guys are crying about a lion, but what about the babies? You know what I call that? I call that being a hypocrite.
I say, tonight, we punish Planned Parenthood. I think it’s time that abortion doctors should have to run and hide and be afraid for their life.
Instead of some hunter.
Both are wrong. But one is a lion. The other are humans. Stand up for humans.

Of course, these are despicable things to say. He is basically calling for abortion doctors to be hunted and killed like animals. This is a new low even for this ignorant buffoon. But is it criminal?

Certainly, he is at least morally culpable to some degree, or so says a friend who has a degree in Philosophy. I will admit this particular branch of human thought, while crucial to human knowledge and quite fascinating in general, is one that I have difficulty fully comprehending and frankly gives me a headache. So I shall defer to her judgment on this. This is the same level of moral culpability that any of numerous right-wing bloviators might bear. Recall that some years ago Bill O’Reilly inveighed against George Tiller, or ‘Tiller the Baby Killer’ on several occasions on his show. Not long after, George Tiller was killed by a gunman while he was attending services at his Kansas church. There are of course many other examples this sort of irresponsible speech from all corners of the right-wing pundit-sphere.

But what O’Reilly and Feuerstein said, and what many others have said in the same vein, are simply not criminal offenses. Brian Dunigan, an attorney at Ponce Law in Nashville, put it this way:

The First Amendment protects speech even if it advocates violence, unless the speaker encourages “imminent lawless action.” This was decided in a case called Brandenburg v. Ohio. That case refined a concept you may be familiar with, the “clear and present danger” test. In a nutshell, it’s not illegal to call for violence at some indefinite time in the future. You just can’t incite someone to violence at that immediate moment.

Does this mean that people shouldn’t speak out against such speech? Of course not. In the ‘market of ideas’, these sort of disgusting utterances should be thoroughly discredited. Indeed, with the advent of the internet and the explosion of social and ‘new’ media, there are many voices doing exactly that : speaking out against the purveyors of such ideas. However, we must also remember that free speech in the U.S. is almost a religion all in itself, and those who would abridge that speech, regardless of any good intentions they might have, might be wary lest they invoke the law of unintended consequences. For the very sort of fiery rhetoric they despise coming from an opposing view might be the very type of speech they might engage in when a cause that is dear to them arises. And who is to say those very restrictions they enacted might not ultimately become shackles around their own wrists?



  1. The Supreme Court has held that “advocacy of the use of force” is unprotected when it is “directed to inciting or producing imminent lawless action” and is “likely to incite or produce such action” (from Wikipedia)

    The question is: Does this speech fall into the category of producing imminent lawless action or likely to product such action?

    To me, the constant calls for killing in the name of stopping abortion seem to produce lawless action. But possibly it is a more of a “last straw” kind of thing – it’s not one call to harm, it’s the total of all the calls to harm over time, lessening the culpability of any one speaker.

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