‘As offensive as it is, it’s not illegal’: Idaho deals with violent, ‘nasty’ rhetoric

BOISE – On Monday, Oct. 25 – the same day a shooter killed two people and injured several others at the Boise Towne Square mall – an Idaho man asked a charged question at an event in Nampa featuring right-wing activist Charlie Kirk.

“When do we get to use the guns?” the man asked, to applause from the audience, which previously applauded the falsehood that large-scale fraud cost Donald Trump the 2020 presidential election.

He continued: “That’s not a joke. I’m not saying it like that. I mean, literally, where is the line? How many elections are they going to steal before we kill these people?”

Since then, the questioner’s comments have drawn national attention, and become for some a primary example of the violent rhetoric that now laces the discourse of some far-right politicians and activists, and infects public dialogue on all sides.

But do these speeches go too far?

The speaker at the Kirk event might have caused alarm in many circles and a call to police, but his comments were not beyond the bounds of free speech, according to experts.

Shaakirrah Sanders, a law professor at the University of Idaho, noted that free speech rights in the U.S. are interpreted broadly by courts. Speech usually has to refer to imminent lawless action for it to be subject to legal curtailment.

She also said that the context and the crowd where statements are made matter, as speakers are expected to be aware of their surroundings.

“Today we see the court take a very hands-off approach to speech,” Sanders said. “Even that which is violent, as long as it doesn’t rise to the level of incitement.”

Sanders said the comments at Kirk’s event “clearly have advocacy, and the advocacy seems to imply violence, with the questions about guns,” she said. “So the question is now how imminent and how likely that this speech would actually incite violence.”

Sanders said “the crowd doesn’t seem to be ready to engage in imminent lawless action. So it’s about the group that you’re speaking to in the context surrounding that.”

She continued, “As distasteful as this speech may seem to some, it very well could be protected in terms of what the government can do.”

Gary Raney, a former Ada County sheriff, agreed with Sanders.

“You’ve got one guy without an ability to presently carry out that act,” Raney told the Statesman. “As offensive as it is, it’s not illegal.”

Raney said there are no clear statutes on what is permissible speech; even the Supreme Court doesn’t explicitly permit or hinder certain types of speech, but rather has provided constitutional standards that focus on the harm done by speech. Occasionally, a “disturbing the peace” ordinance or statute will be applied by police to a person’s comments in public.

“It’s very difficult for law enforcement, but the bottom line is that (the speech) really has to be so egregious as to actually cause harm,” Raney said.

So are there possible legal repercussions for speech? In rare instances, perhaps.

A spokesperson for the Ada County Prosecutor’s Office, Emily Lowe, pointed to a state statute regarding assault, which describes the “unlawful threat by word or act to do violence to the person of another.”

“The assault statute prohibits threats to do harm when coupled with the apparent ability to do so and doing some act which creates a well-founded fear that violence is imminent,” Lowe said in an emailed statement. For “rhetoric that is not an actual threat, that is a complicated area involving the laws around the First Amendment and the reasonable time, place and manner restrictions on speech.”

The incident in Nampa was seen by some as indicative of a trend within the extreme right of the Republican Party, at a time when Idaho and the nation have seen heightened levels of political polarization and partisan attacks.

Stephen Hayes, a conservative commentator, left Fox News last month over a television program put together by Tucker Carlson called “Patriot Purge.” It concerns the insurrection at the U.S. Capitol on Jan. 6, 2021, and the TV special advances an unfounded narrative that the uprising was a “false flag” operation, orchestrated by people other than Donald Trump supporters to demonize conservatives.

In an interview with the New York Times, Hayes said he had been disturbed recently after seeing what happened at Kirk’s Turning Point USA event in Nampa.

“That’s a scary moment,” Hayes told the Times. “And I think we’d do well to have people who, at the very least, are not putting stuff out that would encourage that kind of thing.”

Not all conservatives took issue with the comments. On Twitter, Rep. Ben Adams, of Nampa, called the question “fair,” after it was criticized by fellow Republican Rep. Greg Chaney, of Caldwell, who had said: “This kind of rhetoric has no place in our republic. It should be decried by everyone in public service.”

A few weeks after the Kirk event, a visitor at the Idaho State Museum posted a digital message that read, “I want to see all liberals dead,” according to Mark Breske, a spokesperson for the museum. The post was promptly deleted, and the museum has since implemented content filters to automatically flag certain words.

Stephen Utych, an associate professor of political science at Boise State University, told the Statesman that a sharp rise in polarization over the past decade has led some Americans to draw stark conclusions about their political opponents.

“The rhetoric is pretty nasty right now,” he said. “People who are on the other side of the political spectrum are not just necessarily people you disagree with, but they’re people who are threats to your worldview. … This stuff feels like almost treating politics as a battle of good versus evil rather than some kind of more minor disagreement.”

Utych, who studies rhetoric in politics, said that he sees an “asymmetry” in how the U.S.’s two main political parties have changed in recent years, with Republicans moving much further to the right than Democrats have moved to the left.

Utych said that Kirk, Trump and many others are “fanning the flames” of division.

“They’re out there making it seem like people on the left are this existential threat to the worldview of your average conservative citizen, right?” he said. “People aren’t coming up with this on their own. They’re getting these kinds of radical beliefs … from the right-wing media.”

Utych also pointed to research by academics that shows a link between support for political violence and conspiracy theories – something that has been exacerbated by Trump’s pursuit of one of the biggest conspiracy theories: that the election was somehow stolen from him.

Though gun rights have long been a part of politics, Utych said the frequent display of weapons by Republican politicians is different than it was in the past.

He pointed to Lt. Gov. Janice McGeachin, who appeared in a video in the fall of 2020 with a handgun and a Bible, in response to COVID-19 health restrictions. Republicans in Congress – such as Madison Cawthorn, of North Carolina, and Lauren Boebert, of Colorado – frequently appear with firearms.

Just after the recent deadly school shooting in Michigan, Boebert and Rep. Thomas Massie, R-Kentucky, posted family photos of them and their children holding guns, including assault rifles.

“That’s not violent rhetoric but it’s violent imagery, and that’s very suggestive,” Utych said.

During the Capitol riot on Jan. 6, when Trump supporters stormed the Senate and House chambers and forced lawmakers to flee, a noose and gallows were among the items left on the grounds.

Utych also noted that both left- and right-wing demonstrators have destroyed property in recent years and clashed with authorities at various demonstrations, be they Black Lives Matter events or rallies to support Trump. He said he’s seen an increase in foreboding rhetoric on the left, particularly about voting rights, but he thinks that it’s difficult to draw an equivalency, since the focus is on actual changes to state voting laws rather than unfounded, disproved claims of election fraud.

In a public opinion survey this fall commissioned by the Frank Church Institute at Boise State University, researchers found that 85% of adults in Mountain West states are very or somewhat concerned about the health of American democracy.

The survey also found that 83% of adults are worried about misrepresented facts and misinformation – yet only 51% believe that President Joe Biden legitimately won the 2020 election.

And 20% said political violence is justified when the government is not acting in people’s best interests.

“I wish I had an answer for how this gets better,” Utych said, “and quite frankly I don’t.”

Idaho Rep. James Ruchti, a Democrat from Pocatello, told the Statesman that he thinks a coarsening of public discourse in the state has led to more confrontational behavior by politicians and citizens. He said a number of Idaho Republicans closely aligned with the Idaho Freedom Foundation use “obnoxious, disrespectful, coarsened dialogue” in the Legislature and among their constituents, which has contributed to a disturbing tenor in Idaho politics.

“Violent speech and violent behavior at rallies or public meetings, that doesn’t happen in a vacuum,” Ruchti said. “Over time, it’s going to lead to more and more violent rhetoric, imagery in our public discourse and eventually violence altogether.”

The Idaho House Republican Caucus did not respond to a request for comment.

Sen. Melissa Wintrow, D-Boise, has co-chaired the National Institute for Civil Discourse’s Network of State Legislators, meeting with state representatives outside of Idaho to discuss discourse. She called today’s rhetoric “so strong.”

“I think we have to take a deep breath and lay our weapons down and come to the center,” she said, noting that she feels more hopeful about young people, who are “much more open to each other.”

“But man,” she said. “It’s hard to combat lies, especially when you are in the minority. I’m usually a very hopeful person – I really am – and I’m a little bit dismayed at this time.”

After the Turning Point USA gathering, the comments of the man in the Nampa video, Boise resident Zachary Fettel, spread widely on Twitter, with multiple people posting his name.

On Oct. 28, Fettel filed a report with the Boise Police Department that states he “asked a question regarding timelines on when we, meaning the individual citizen in general, could put an end to the political tyranny in this country.”

The report states: “The way he asked the question was captured electronically and misconstrued by liberal news outlets and spread on social media platforms … (B)oth Fettel and his wife have received somewhat vitriolic messages and their identities have been spread around.”

Fettel and his wife reported that someone posted the home address of his parents, that they had received “threatening messages” and that they were worried “unsavory or even harmful activity” could be taken against Fettel or his family.

Fettel also sent the police department a voicemail recording, obtained by the Statesman. “I saw that little video of you asking about guns and meaning to shoot people. You better have a lot of ammunition,” the caller said, before calling Fettel an expletive.

The Statesman made multiple attempts to contact Fettel for comment, but he did not respond.

A day after the Oct. 25 rally in Nampa, Kirk held another at a church in Meridian – at which far-right activist and Idaho Republican gubernatorial candidate Ammon Bundy made a YouTube video complaining that he couldn’t carry his gun into the church.

Three days later, a person called law enforcement in Ada County to say they had seen a video of Fettel “making statements of using guns against people” – presumably referring to the Oct. 25 event. The Meridian Police Department responded by seeing whether an investigation was warranted, according to an incident detail report obtained by the Statesman, and that report was quickly changed from “high priority” to “low priority.”