Is criticizing Rep. Ilhan Omar's comments an incitement of violence? Not even close

Apparently, when accusing your political opponents of bigotry and hatred is no longer an effective silencing tool, the next move is to claim that they're inciting violence against you or someone else.

Here's what we're dealing with.

Rep. Ilhan Omar, D-Minn., made comments last month minimizing the 9/11 terror attacks. When she got called out for it, her fellow Democrats accused Republicans of endangering the congresswoman and her family by supposedly inciting violence against them. Additionally, the New York Post's Thursday cover from last week was also accused of endangering Muslims.

So what actually is the legal definition of inciting violence? And are Omar's critics guilty of it in this case?

The Supreme Court wrestled with the question 50 years ago and came up with an answer to the first question.

The case was Brandenburg v. Ohio and the question was whether or not an Ohio criminal syndicalism law which outlawed advocating "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform" violated the First Amendment. You can read the details here.

The court ended up ruling against Ohio's law and came up with a two-part test to determine what actually counts as incitement of a criminal act. Basically, the speech in question must be both “directed to inciting or producing imminent lawless action,” and "likely to incite or produce such action.”

Calling out a member of congress for flippant comments that minimized the worst terror attack on American soil falls nowhere near that. Seeing as nobody directly or indirectly called on a group of people to commit any violence against anybody, all of the incitement accusations here fall short, per the Brandenburg Test.

But, the easy counter to this says the detractors aren't making a legal case against Omar's critics, they just want them to stop saying things that make crazy people threaten to do illegal things.

If we were to set the proclivities of crazy people as the standard for acceptable speech in the public square, we'd never be able to say anything of substance whatsoever.

This situation also points to one of the most glaring double standards of our body politic.

After all, when Democrats make inflammatory comments about Republicans being racist, allegedly bringing about the end of the world via tax cuts, pushing grandma off the cliff on health care, that doesn't put anyone's lives in danger, apparently.

Exactly how many people in the anti-Trump camp are worried about the volume of death threats that the U.S. Secret Service receives on a daily basis before they level their standard suite of criticisms and allegations against the president and his family? And how many of Trump's more vocal opponents would actually tone down their anti-Trump rhetoric if given the same argument?

Likely not a one, and that's exactly how many conservatives ought to buy into this latest tactic.

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