Reprinted with permission from Daily Kos

Honestly, a better question might be "Why is Tucker Carlson not in jail?"

On Friday night, Carlson was back on Fox News to welcome COVID-19-"truther" Alex Barenson to his program. Together, the two said that "masks are useless" and nothing more than a symbol that someone is obedient to the government, and claimed that mask mandates have no intention other than to make people scared, and are doing "psychological damage." They then moved on to say that the vaccines are "declining in effectiveness very quickly," and that the truth about vaccines was being blocked by "tremendous financial pressure."

Decades ago, the Supreme Court determined that the United States should live with a very expansive view of the First Amendment's promises of free speech; in fact, that view has continually expanded. Until the 20th century, the primary test was of "bad tendency"; that is, speech could be outlawed if it could be seen as causing harm to the public welfare. Then, for most of the last century, the test was "clear and present danger," meaning that speech didn't have to just be something that was considered a threat, but an imminent and specific threat. That requirement was made even sharper after 1969 when a series of decisions moved the stakes to a requirement that speech be designed to generate "imminent lawless action." Under that requirement, speech is not protected only if it is intended to create an incident that is both "imminent and likely."

That expansion of First Amendment rights has been a good thing, in part because it has protected the speech of those arguing for civil rights and those protesting war. But it's also been used for bad purposes, to protect speech designed to create schisms in the nation and to build up racist hatred. However, even the most extreme interpretation of the First Amendment should not protect the acts in which Carlson is currently engaged. His words are, by any standard, causing harm to the public welfare, generating a clear and present danger, and creating an imminent threat to the very lives of Americans.

Whether or not Carlson could be successfully prosecuted is an open question. Whether he should be on the air is not.

Back in 2017, one of those strange and harmful trends swept through the nation: the Tide Pod Challenge, a fad in which people—mostly teens posting on social media—bit into Tide's single servings of squishy laundry detergent.

As Snopes explains, the earliest videos of the "challenge" went back to 2012, and at different times over the years people had resurrected the idea that Tide Pods were edible in ways that included a supposed Tide Pod pizza and a fake Gordon Ramsay review. But suddenly, around the end of 2017, the idea seemed to catch on in a big way, particularly the idea of teens filming themselves biting down on a Pod until it sprayed out the highly toxic liquid inside. In a few months at the end of 2017, there were 200 cases of teens at least partially swallowing detergent. In just the first 11 days of 2018, there were 40 more. Approximately 10 deaths resulted.

Strange doesn't begin to cover it, but here's the important part: Every social media platform reacted by removing every Tide-challenge related video and banning posters. Those platforms then moved swiftly to post warnings that the challenge was life-threatening. As news of the challenge became general knowledge, every major media outlet responded by running programs warning against the practice, and calling out the videos as unsafe. From CBS News to Good Morning America, the phenomenon was examined, the dangers made clear, and those pushing the idea were shamed. Networks didn't feel any embarrassment about calling out those involved, even those who were under 18, and pointing out the dangers of what they were encouraging.

Now, let's move to another event that took place in 2017. That's when Harley Branham, a manager at the local Dairy Queen in Fayette, Missouri, was charged with encouraging the suicide of a 17-year-old employee. As theSt. Louis Post-Dispatch reported, Branham harassed the employee over a period of three months, making fun of his weight, his appearance, his way of speaking, and his intelligence. In 2019, Branham pleaded guilty to a charge of third-degree assault in the youth's death, and was sentenced to two years' probation after making a deal with prosecutors.

Branham's case is not unique. In 2014, 18-year-old Conrad Roy climbed into his pickup, closed the doors, and ended his life through carbon monoxide asphyxiation. For months in advance of that day, his girlfriend Michelle Carter had been sending Roy messages encouraging him to kill himself. At one point in the middle of his death, Roy texted Carter that he had gotten out of the truck. "Get back in," she texted in reply. He did. In 2017, Carter was convicted of involuntary manslaughter. She was released in 2020, after spending just over a year behind bars.

In May 2021 alone, over 18,000 Americans died of COVID-19. Of those who died, only about 150 were people who had been vaccinated. In the same month, more than 107,000 Americans were hospitalized for severe illness attributed to COVID-19. Only 1% of those people had been vaccinated.

It may be too much to charge Tucker Carlson directly with 18,000 counts of manslaughter for his actions over the course of that month, but there is one thing certain: What Carlson is doing is much closer to the actions of Branham or Carter than it is to the teens laughing over the Tide Pod challenge. The frozen food heir is fully aware of the consequences of his actions, He is fully aware of the falseness of his claims. He is fully culpable in the deaths of thousands of Americans.

This is not a case of a broadcaster repeating a mistaken claim, or someone rushing forward with information that is incomplete. Carlson is deliberately, frequently, and constantly providing disinformation to the public that generates real and lasting harm—including death on a massive scale.

There may be no prosecutor in the country willing to charge Carlson for his involvements in these days—though honestly, there should be. But if that's too much to expect, then certainly it should be a bare minimum that Carlson be treated with the kind of seriousness that was given to a disorganized group of kids that generated 0.1 percent as many deaths over eight years as Carlson and his ilk produced in a single month, a month that was the least deadly month of the entire pandemic.

Every single platform should feel an obligation to not just disown Carlson, but to prominently feature material correcting his false claims. Every single news program should feel obligated to call out this threat regularly, until it no longer exists. And every single sponsor who puts up a dime for his program should be considered a co-conspirator in his acts.