ARTICLES
The Right to Rage: Free Speech and Rage Rhetoric
in American Political Discourse
JONATHAN TURLEY*
TABLE OF CONTENTS
I. INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 481
II. RAGE RHETORIC AND AMERICAN DISSENT . . . . . . . . . . . . . . . . . . . 486
III. “PANIC POLITICS,” “TOXIC IDEOLOGIES,” AND SPEECH
CRIMINALIZATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 495
A. Blackstone and “Schismatical” Speech . . . . . . . . . . . . . . . . . 496
B. “Toxic Ideology”: History Repeating Itself in Speech
Legislation and Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . 508
C. The Right of Rage: The Constitutional Value of “Low-Value
Speech”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 515
IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 524
And now, I pray you, sir,
For still ‘tis beating in my mind, your reason
For raising this sea-storm?
1
I. INTRODUCTION
These words of Miranda to Prospero in The Tempest capture the dichotomy
between reason and rage. The difficulty is that both reason and rage are on a sin-
gle spectrum of thought. Rage can be reason amplified into a rave or it can be rea-
son atrophied to the point of madness. For pedestrians, including courts, these
“sea storms” often appear threatening and inexplicable. The anger seems to invite
violence in others and courts often are asked to separate those who merely agitate
from those who incite. It is difficult to see beyond the “sea storm” itself. For
many, rage rhetoric is low-value speech with high costs for society. The resulting
*© 2023, Jonathan Turley. The J.B. and Maurice C. Shapiro Chair of Public Interest Law, The
George Washington University.
1. WILLIAM SHAKESPEARE, THE TEMPEST act I, sc. 3 (1611).
481
line drawing has occurred for centuries without rendering a clear distinction.
Indeed, this is a question that continues to occupy courts and commentators as po-
litical violence increases in the United States. Courts are once again facing claims
of sedition by the government, and other charges raise questions of the criminal-
ization of speech.
We are living in an age of rage.
2
I first used this phrase soon after the election of Donald Trump to capture a notable shift in tenor
and content of both advocacy and media coverage. Despite working as a legal analyst and columnist for
various networks and newspapers for thirty years, I had never seen the level of violent speech and
protests that became the norm. By 2017, I was noting how this rage over Trump’s controversies was
making legal analysis more challenging in explaining the difficulty in prosecuting Trump or his family
for a myriad of claimed crimes. See, e.g., What The Law Says About Donald Trump Jr.’s Meeting With A
Russian Lawyer, NPR (July 16, 2017), https://www.npr.org/2017/07/16/537509422/what-the-law-says-
about-donald-trump-jr-s-meeting-with-a-russian-lawyer [https://perma.cc/P3EK-UZKJ]. Since that
time, the phrase has been used to refer to the rising level of violent speech and anger in our political
discourse. In a separate article, I explore the Trump controversy in more depth and the continued use of
sedition conspiracy charges in light of the history discussed here. See Jonathan Turley, Rage Rhetoric
and the Revival of American Sedition, 65 WM. & MARY L. REV. (forthcoming 2024) [hereinafter Turley,
Rage Rhetoric]. The historical and legal discussion of rage rhetoric in this article is part of a broader
discussion in my forthcoming book, The Indispensable Right: Free Speech in an Age of Rage (Simon &
Schuster 2024) [hereinafter Turley, The Indispensable Right].
Few historical periods match the current level
of violent and hateful speech from both the left and the right.
3
This “sea storm”
includes threats from political leaders as well as advocacy groups against those
with opposing views. After the January 6 riot at the U.S. Capitol, rage rhetoric is
again not just shaping our politics but testing our laws.
4
More than fifty years after
the Supreme Court’s decision in Brandenburg v. Ohio,
5
there are again legislative
and litigation efforts to push for greater criminalization of violent speech. In the
free speech community, this environment could not be more dangerous for pro-
tecting free expression and associated rights. These fights occur at the far
extremes of our society, where free speech erosion first appears. Groups ranging
from Antifa on the left to the Proud Boys on the right routinely supply new out-
rage to fuel the calls for a crackdown on speech ranging from censorship to crimi-
nalization. The value of such hateful speech is hard to see but essential to defend.
Indeed, violent speech is often treated as the exception to principles of free
2.
3. See generally, Jonathan Turley, Harm and Hegemony: The Decline of Free Speech in the United
States, 45 HARV. J. L. & PUB. POL’Y 571 (2022); see also Censorship Laundering: How the U.S.
Department of Homeland Security Enables the Silencing of Dissent”: Hearing before the Subcomm. on
Oversight, Investigation, and Accountability of the H. Comm. on Homeland Security, 118th Cong.
(2023) (testimony of Professor Jonathan Turley); The Weaponization of the Federal Government:
Hearing Before the Select Subcomm. on the Weaponization of the Federal Gov’t, 118th Cong. (2023)
(testimony of Professor Jonathan Turley); Examining the ‘Metastasizing’ Domestic Terrorism Threat
After the Buffalo Attack: Hearing Before the S. Comm. on the Judiciary, 117th Cong. (2022) (testimony
of Professor Jonathan Turley); Fanning the Flames: Disinformation and Extremism in the Media:
Hearing Before the Subcomm. on Communications and Technology of the H. Comm. on Energy and
Com., 117th Cong. (2021) (testimony of Professor Jonathan Turley); The Right of The People Peaceably
To Assemble: Protecting Speech By Stopping Anarchist Violence: Hearing Before the S. Comm. on the
Judiciary, 116th Cong. (2020) (testimony of Professor Jonathan Turley).
4. See ‘Metastasizing’ (testimony of Professor Jonathan Turley), supra note 3.
482 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 21:481
speech protection, framed as a category that straddles the line between thought
and action. Yet, as discussed in this article, “rage rhetoric” often manifests in
periods of deep and bitter division in our society. It is the manifestation of social,
political, and religious grievances that are boiling just under the surface of our po-
litical discourse. There is no serious debate that speech used to plan or further a
specific crime can be prosecuted, including under a myriad of conspiracy crimes.
Rage rhetoric can ignite others to action, a view later adopted in the United States
as words holding a “bad tendency” for public discord.
6
Many of us have
denounced rage rhetoric on both sides of our political divide. Yet, there is also a
value to rage in a free society that is found in the act of speaking and the signaling
of deeper discord. Condemning rage rhetoric does not mean that such speech
should not be protected under the First Amendment.
Rage is often a matter of perspective. It is a word that can mean “violent and
uncontrollable anger” or “intense feeling” or “passion.”
7
Rage, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/rage [https://perma.cc/
3AHZ-HKUS] (last visited Feb. 24, 2023).
Rage is justified and
even celebrated in some circumstances. It is often used to express utter rejection
of the status quo or power structures. We can “rage against the machine” in
music
8
RAGE AGAINST THE MACHINE, https://www.ratm.com/home/ [https://perma.cc/K8CU-5B2Y] (last
visited Feb. 24, 2023).
or “rage against racism” in politics.
9
Rage Against Racism, FACEBOOK, https://www.facebook.com/rarfestival/ [https://perma.cc/JTH9-
P6HJ] (last visited Feb. 24, 2023).
Rage is often viewed as the final de-
finitive stage of opposition or defiance—such as when Dylan Thomas inspired
others with his words, “Do not go gentle into that good night . . . Rage, rage
against the dying of the light.”
10
For Dylan, it was defiance of old age and surren-
dering to the inevitability of death. Rage rhetoric often espouses the same “rage
against the dying of the light” sentiment towards ideals or values. It is often
expressed in the same extremist terms, calling for not just defiance but at times
the destruction of opposing systems. When we are enraged, we use rage rhetoric
to convey an absolute opposition or rejection. It offers clarity of cause and, for
some, license for extreme forms of protests.
11
Rage rhetoric is all around us, saturating our political and social discourse. It is
often meant to shock or to motivate others. For decades, protests have chanted
“Burn Baby Burn” as a way of calling for radical change or a societal reckoning.
12
Sylvester Monroe, ‘Burn Baby Burn’: What I Saw as a Black Journalist Covering the L.A. Riots
25 Years Ago, WASHINGTON POST (Apr. 28, 2017), https://www.washingtonpost.com/news/retropolis/
wp/2017/04/28/burn-baby-burn-what-i-saw-as-a-black-journalist-covering-the-l-a-riots-25-years-ago/
[https://perma.cc/NT74-2PY2].
On January 6, rage fueled rage with comments like those of former President
6. See generally Geoffrey R. Stone, The Origins of the “Bad Tendency” Test: Free Speech in
Wartime, 2002 SUP. CT. REV. 411 (2002).
7.
8.
9.
10. DYLAN THOMAS, Do Not Go Gentle into That Good Night, in THE POEMS OF DYLAN THOMAS 239
(Daniel Jones ed., 2003).
11. As Virgil stated, “Their rage supplies them with weapons.” CHARLES NOEL DOUGLAS, FORTY
THOUSAND QUOTATIONS PROSE AND POETICAL 75 (1937).
12.
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