Obama (left) and Holder
(Pablo Martinez Monsivais / The Associated Press)

On her radio show yesterday, Fox News provocateur Andrea Tantaros mouthed an impassioned defense of journalists against the intrusions of the Obama administration:

Let me tell you how people and journalists are being treated these days. They are being stalked, they are being spied on. In Missouri, a news station fired an anchor who talked about the IRS shakedown. Yeah, fired. This is how corrupt the left is. And now, journalists can’t even get into the IRS offices in Ohio, where this alleged scandal started, without an armed guard. This is what is happening to our press.

Those remarks make clear that Tantaros is an admirer of the First Amendment. As she rightly should be, given what she said later in the same monologue:

This is Obama’s America. It’s like the Soviet Union. He said he’d change the country. He said it. He said it. He said it. And a lot of people voted for him. And if you see any of those people today, punch them in the face.

Later, in a chat with a caller, rock ’em-sock ’em Tantaros returned to the mic:

To be clear, I didn’t say punch Obama in the face — you’re going to get me arrested with this type of government. If someone voted for him. If someone voted for him. If anyone that you know who voted for President Obama, smack him down, please.

Under our great First Amendment, Tantaros’s near-incitement to violence would appear to be protected expression.

For shielding her comments from criminal prosecution, Tantaros should thank a 1969 Supreme Court decision in the case Brandenburg v. Ohio.

That ruling said, in effect, that states may not criminalize thuggish speech, except when such speech “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

Clay Calvert, who teaches media law to journalism students at the University of Florida (and is frequently consulted by this blog), lays out his analysis:

First, it is not likely she actually intends for people to go out and physically strike Obama voters. Second, even if she did intend this, there is the question of imminence — there must be a very short time period between the speech in question and the action that results from it in order for the speech to constitute an incitement to violence. Not likely people listening to her radio show are going hear her words and then immediately jump out their cars or leave their homes to find an Obama voter. Finally, and most importantly, it’s simply not likely or at all probable that anyone would actually follow her command, especially because the words leading up to her call to punch Obama voters make it clear she’s in the middle of a political rant.

Or because no one takes seriously the things she says in any case.