Can Tucker Carlson be prosecuted for crimes against humanity?

The Nuremberg precedents could be applied, but only if the U.S. agreed to follow international law

The latest mass murder of minority Americans came at the hands of a racist and anti-Semitic gunman espousing the fascistic replacement theory, which claims liberal elites are deliberately replacing white people with Blacks and Hispanics.

This particular conspiracy theory is being actively promoted on conservative media, most notably by Fox News’ Tucker Carlson, and is embraced by many leading GOP politicians. A recent investigative report by New York Times reporter Nicholas Confessore found more than 400 instances in recent years where Carlson claimed Democrats were deliberately importing “more obedient voters from the third world” to “replace” the current electorate and keep themselves in power.

The 180-page screed written by 18-year-old Payton Gendron, who slaughtered 10 people at a Buffalo grocery store, all but one of them African American, left little doubt he was inspired by Carlson’s diatribes. Several passages closely paralleled Carlson’s own rants and writings.

President Biden, during his trip to Buffalo to console the families, called out the pundits and rightwing politicians who have embraced replacement theory. He condemned “those who spread the lie for power, political gain and for profit.”

Carlson immediately branded Gendron’s rampage as the isolated act of a deranged teenager, a statement that lacks all credibility. In recent years, the perpetrators of the 2015 murders of nine Black members of a Charleston, S.C., church; the 2018 murders of 11 Jews at a synagogue in Pittsburgh; and the 2019 murders of 23 mostly Hispanics in El Paso have all expressed similar views to those of Carlson and Gendron.

Carlson’s show on Fox News reaches 3 million people nightly, making it the most watched show on cable television. He is the primary reason Gendron’s beliefs are no longer confined to the outer fringes of the internet. A recent poll by the Associated Press and NORC found nearly 1 in 3 Americans say they are extremely or very concerned that “native-born Americans are losing economic, political and cultural influence in this country because of the growing population of immigrants.”

Wrapping himself in the First Amendment

Carlson wrapped himself in the First Amendment immediately after the Buffalo massacre. “Because a mentally ill teenager murders strangers, you cannot be allowed to express your political views out loud,” he told his followers. “That’s what they’re telling you.”

Writing in the Atlantic, Juliette Kayyem, the assistant secretary for homeland security under President Barack Obama, now at Harvard’s Kennedy School of Government, rejected the idea that Gendron was a deranged loner with no apparent accomplices. “That lone wolf language fails us in an era when hate and radicalization now serve as a proxy for the collaborative herd, for the co-conspirators and colluders,” she wrote.

The wrong language has a tendency to excuse the herd. At its core, the idea of a “great replacement” is about violence, because the notion of displacement justifies the elimination of the parties responsible for taking your place. Their very presence—not their ideas, or politics, or voting patterns—is the threat. Political and media leaders who spread these ideas can play coy, a notion I’ve described as stochastic terrorism, by having plausible deniability about what in fact they are promoting. Their language may be vague as to place and time of the kill, but it isn’t misleading. It is terror, executed by the herd.

Yet even Kayyem questions whether perpetrators of the lies that inspire individual acts of violent terror against minorities can be brought to justice. Pointing to Biden’s post-massacre statement, she praised his words as “a form of public shaming of the racist network that is culpable, even if not legally responsible.”

In U.S. jurisprudence, the limits on legal responsibility for incendiary speech stem from a 1969 Supreme Court decision in Brandenburg v. Ohio. The case overturned a series of post-World War I decisions that upheld the government’s right under the wartime Espionage Act to jail socialists who wrote pamphlets and gave speeches opposing the war. The Brandenburg case, which involved Ku Klux Klan members advocating “revengeance against ‘niggers’ and ‘Jews,” broadened allowable speech unless it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

Proving Carlson or anyone else advancing replacement theory intended to incite violence would be an impossible task for any prosecutor. The First Amendment’s current interpretation clearly protects even the most odious forms of speech and hate-filled publications and broadcasts.

The current administration admitted as much last year when Biden announced his strategy for combating violent extremism, which includes more surveillance of hate groups, demanding social media companies take down violent videos, and funding digital literacy programs. Officials told reporters at the time that policing extremist language online and on cable television was difficult given the First Amendment.

The Nuremberg precedent

But that is not the case for international law, which, ironically enough, was established by U.S. and allied military prosecutors at the Nuremberg trials after World War II. At least three major Nazi propagandists and controllers of German media were brought to trial for using their platforms to dehumanize Jews and other minority groups, which conditioned the broader population to both commit and accept mass atrocities. The prosecutors referred to such dehumanization as “persecution.”

The cases and their implications for incendiary speech and its relationship to genocidal violence and minority group persecution were covered in this comprehensive 2014 article in the Ohio State Law Journal by Gregory Gordon, then a law professor at the University of North Dakota School of Law. He previously served on the International Criminal Tribunal for Rwanda.

The cases involved Julius Streicher, editor-in-chief of the virulently anti-Semitic newspaper Der Stürmer (the online Daily Stormer, founded in 2013 in the U.S., takes its name from its Nazi-era equivalent); Hans Fritzsche, head of the radio division of Hitler’s Propaganda Ministry; and Otto Dietrich, who ran a number of large German newspapers during Hitler’s rise to power and eventually headed the Nazi press office.

Two of the three men were convicted of promoting crimes against humanity and sentenced to long prison terms.

The case against Streicher was the most clear cut. Founded in 1923 and read by 600,000 subscribers at its peak, Der Stürmer published a constant stream of hate screeds and grotesque caricatures vilifying and dehumanizing Jews. Displayed on public bulletin boards in glass-covered cases, the publication exerted a significant influence on German attitudes, “infecting the German mind with the virus of anti-Semitism and incited the German people to active persecution,” prosecutors alleged.

The judges determined Streicher continued writing these texts after becoming aware Jews were being liquidated in Eastern Europe. “Streicher’s incitement to murder and extermination at the time when Jews in the East were being killed under the most horrible conditions clearly constitutes persecution on political and racial grounds in connection with war crimes, and constitutes a crime against humanity,” the judgment concluded.

Fritzsche, who was eventually acquitted, worked for newspapers and news services before joining the Nazi Propaganda Ministry in 1933, rising to become chief of its press division in 1938 where he began issuing daily orders to newspapers on what to publish. In 1942, he became head of the radio division with a daily radio program, “Hans Fritzsche Speaks.”  

According to Gordon: “These broadcasts were the basis of the crimes against humanity charges against Fritzsche. The evidence presented against him at trial demonstrated that such radio emissions espoused the general policies of the Nazi regime, which ‘arouse[d] in the German people those passions which led them to the commission of atrocities.’”

The Tribunal did not find Fritzsche guilty, however, “because it concluded his Jeremiads against the Jews did not directly urge their persecution and ‘[h]is position and official duties were not sufficiently important . . . to infer that he took part in originating or formulating propaganda campaigns.’”

An interesting case

The third case involving Dietrich is the most interesting, in Gordon’s view, because it has been largely overlooked in international jurisprudence regarding war crimes and crimes against humanity. He married into a newspaper family, joined the Nazi Party in 1929 and became a major fundraiser among German industrialists during Hitler’s rise to power, thus earning an appointment as chief press officer in 1934. By the end of the 1930s, he controlled everything printed in daily newspapers and periodicals with over 30 million circulation and dictated the flow of information given the Führer.

Nuremberg prosecutor Alexander Hardy, in his history of the trials, asserted Dietrich “led the press propaganda phases of the program which incited hatred and conditioned public opinion for mass persecutions on political, racial, and religious grounds. Heretofore, Dietrich’s role has been ignored by historians, but actually he, more than anyone else, was responsible for presenting to the German people the justification for liquidating the Jews.”

Because Hitler fired him in the waning days of the war, he managed to escape immediate arrest and trial with other major war criminals. But he was prosecuted in 1947 by Americans in their occupation zone specifically for persecution of Jews based on his presentation to the German people “the rationale and justification for, and the impetus to, mass slaughter.” By “furnishing the excuses and justifications, (Dietrich) participated in the crimes against humanity regarding Jews,” the judges concluded.

The Dietrich decision, Gordon wrote, shows “hate speech not explicitly calling for action, and standing on its own, may be the basis of a charge of persecution as a crime against humanity.”

Subsequent international jurisprudence based on those decisions set a precedent for bringing charges against non-government broadcasters like Carlson whose on-air screeds wound up inspiring crimes against humanity. In the late 1990s the International Criminal Tribunal for Rwanda ruled anti-Tutsi broadcasts by radio announcers in Rwanda promoted the 1994 mass killings by the Hutus. Citing the Dietrich case, “the virulent writings … and incendiary broadcasts functioned in the same way, conditioning the Hutu population and creating a climate of harm, as evidence in part by the extermination and genocide that followed,” the ruling stated.

On the other hand, a similar case brought after the Bosnian mass murders did not convict Serbian hate speech perpetrators. The International Criminal Tribunal for Yugoslavia, citing both the Dietrich and Fritzsche cases, found “criminal prosecution of speech acts falling short of incitement finds scant support in international case law.”

U.S. citizens not bound by international law, except …

Of course, none of this can be applied to Carlson or other propagandists for replacement theory because the U.S. is not bound by international law. The Senate never ratified the 1998 Rome Treaty creating the International Criminal Court (ICC), which has 123 nation signatories. President Bill Clinton signed the treaty in 2000 but never submitted it for ratification.

In 2002, President George W. Bush notified United Nations secretary-general that the U.S. had no plans to ratify the treaty and had no obligations under it. That puts us in the company of China, Egypt, Ethiopia, India, Indonesia, Iran, Iraq, Israel, North Korea, Russia, Saudi Arabia, Sudan, Syria and Turkey.

Maybe there’s a loophole. Although U.S. citizens cannot be tried by the ICC for war crimes or crimes against humanity, “if they commit a crime in another country that signed Rome Treaty, then (it is) prosecutable,” according to Human Rights Watch.

Hungary is a signatory to the Rome Treaty. Someone might want to go over Carlson’s recent speeches and broadcasts in Viktor Orbán’s conservative paradise to see if he mentioned replacement theory and what he had to say about it.