Newt Gingrich wants Madonna arrested
for her comments at the recent Women’s March on Washington, D.C. You may
remember that she said, “I’ve thought an awful lot about blowing up the White
House.” Is it a crime to think about breaking the law?
The answer
lies in the ancient legal doctrine that “no one is punishable for his
thoughts.” An illegal thought is a crime only when it results in an
illegal act. One court noted, “As we cannot look into the mind to see the
intent, it must, of necessity, be inferred from the nature of the act done.”[1] Without a criminal act, there is no crime.
More
recently, the 7th Circuit U.S. Court of Appeals called the doctrine
a cornerstone of American law. The Court wrote, “Perhaps
the Victorian legal scholar James Fitzjames Stephen best explained this basic
limit on government power: ‘If it were not so restricted it would be utterly
intolerable; all mankind would be criminals, and most of their lives would be
passed trying and punishing each other for offenses which could never be
proved.’"[2]
It is true, however, that Madonna did more than think an evil thought.
She publicly confessed to having had an evil thought. Could her words be
construed as inciting riot?
You may recall last year when an elderly man sucker-punched a protester at a
Trump rally in Cumberland County, North Carolina. Trump seemed to be
encouraging more violence when he said that he was looking into paying the
man’s legal fees. In response, the long-time sheriff of Cumberland
County, “Moose" Butler, announced that he was looking into arresting
Donald Trump for inciting to riot.
Having grown up in Cumberland County and knowing Sheriff Butler’s reputation, I
can tell you that things would have ended badly for Mr. Trump had the sheriff’s
legal team not intervened. They advised the sheriff that Trump had not
violated the law. Just as it’s not illegal to have an evil thought, it’s
not illegal to talk about that thought.
In 1959, our State’s highest court described the type of conduct that would
constitute inciting to riot. The sheriff of Robeson County had arrested
James Cole and others in connection with a KKK rally near Maxton, North
Carolina. Cole and his armed men came to the rally preaching “racial hatred.”
They had earlier burned crosses in the area. Cole publicly stated
that he wanted to “scare up” the “half-breeds” in the county.
Our Supreme Court ruled that, “There can be no justification for the defendants
and their associates to go to the rally . . . armed with rifles, shotguns,
pistols, and other weapons . . . if their intent and purposes were legitimate
and peaceful. . . Moreover, such conduct within itself would . . . cause
a breach of the peace in any community.” It upheld the defendants' arrest.
Unlike the KKK rally, there were no reports of participants bringing weapons or
preaching racial hatred at the Women’s March where Madonna spoke. No one
encouraged the crowd to commit violence and no one was “sucker-punched.”
In fact, despite a crowd numbering several hundred thousand, police made no
arrests.
So, Madonna, we know you have a “Rebel Heart” and a “Tale to Tell”. And I
don’t mean to “Preach”, but I think you can rest assured that in this country
you’re still free to “Express Yourself.”
[1] McDermott v. People, 5 Parker,
Cr. R. 102.
[2] Doe v. Lafayette, 334 F.3rd 606 (7th
Cir. 2003) quoting James Fitzjames Stephen, A
History of the Criminal Law of England 78 (1883).[2].
