Them’s Fightin’ Words: The First Amendment and Incitement
Alisdare Hickson from Canterbury, United Kingdom [CC BY-SA 2.0 (https://creativecommons.org/licenses/by-sa/2.0)]
The debate is raging again, in the wake of the events at the Capitol last week. Some attribute liability to the President and his supporters in power — particularly Ted Cruz and Josh Hawley — for encouraging the violent disruption of government that took place. Others blame Q Anon adherents and other self-proclaimed “Patriots” who whipped themselves and their comrades into a frenzy online. Others maintain that no speech at all is to blame, only the decisions of individuals. While some angrily demand prosecution of those who most vocally encouraged the actions that took place, still others cite First Amendment freedoms as a shield. Who is correct? There is guidance, however murky, from our Supreme Court.
Modern First Amendment jurisprudence starts in 1919 with Schenck v. US, from whence the “crowded theatre” maxim came. Mr. Schenck was a member of a socialist organization which put out a publication urging enlisted and drafted men to defy their orders. Schenck was charged with conspiracy to espionage and related crimes. He appealed his convictions based on First Amendment protections and lost before a 9-0 Court. The Court held that speech that creates “a clear and present danger…that the government has a right to prevent” is not protected. Said Justice Holmes in his famous line:
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.
Schenck was strengthened in 1927 by Whitney v. California in which the Court upheld a state statute that criminalized “speech that undermines the public welfare by inciting criminal activity, disturbing the peace, or advocating the violent overthrow of the government.” Justice Brandeis wrote a notable concurrence, in which he partially rejected the “clear and present danger” test formulated in Schenck and applied in Whitney. Justice Brandeis opined that the danger must be imminent in a strict sense of the word, with “no time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education.” Succinctly, he stated “only an emergency can justify suppression.”
Schenck has never been overturned, but it has been tempered in the century since. In Brandenburg v. Ohio in 1969, the conviction of a KKK leader who, in addition to other unrepeatable invective, stated at a rally in Ohio: “We’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken…We are marching on Congress July the Fourth, four hundred thousand strong.” Brandenburg’s conviction was under a statute substantially similar to that of California in Whitney. Here, however, the Court explicitly overturned Whitney:
…we are here confronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action. Such a statute falls within the condemnation of the First and Fourteenth Amendments. The contrary teaching of Whitney v. California, supra, cannot be supported, and that decision is therefore overruled.
The Brandenburg Court went on to establish the test of “imminent lawless action”, similar to what Brandeis advocated in his Whitney concurrence.
The Court has had opportunity to apply the Brandenburg test in the ensuing 50 years. In Hess v. Indiana in 1973, Hess, an anti-war demonstrator, was convicted of disorderly conduct for stating “we’ll take the fucking street again” at a campus protest. For context, his statement was alleged to have occurred following law enforcement having succeeded in moving the protestors off the street to allow vehicles to proceed unobstructed. The trial court found that Hess’s words were intended to, and likely to, incite further illegal action by the attending crowd- of retaking the just-cleared street. The Supreme Court ultimately reversed, holding that Hess’s words, “at worst…amounted to nothing more than advocacy of illegal action at some indefinite future time.”
Brandenburg is where we are today, and where we must start in determining whether those individuals who appear to have advocated the events that occurred at the Capitol on January 6th are criminally liable. Let’s start at the bottom and work our way up.
First, the very online Q Anon faithful who have spent the better part of 4 years working themselves into a righteous frenzy over the cannibalistic pedophiles they believe make up most of Congress and devoting themselves to the worship of Donald Trump under the guise of “patriotism.” They’ve long awaited “The Storm™,” that moment when “the Plan” is revealed to all and the public tribunals and executions begin. Their de facto leader, “Q,” remains unidentified, and in fact his/her cryptic, periodic messages or “Q Drops” are so vague that I don’t think any case could be made for holding whoever runs the Q account liable for anything. Running a cult is not a crime, after all. Not in and of itself. The adherents have been largely self-directed on this path in a sort of mass hysteria.
If there is any one Q personality who has emerged as a known leader of the group, or who can be pinpointed as the ringleader of the swarm on Washington, I am unaware. The various social media platforms have been replete with individuals exhorting like-minded folks to take action, to show the Dems/the Left/Nancy Pelosi that they won’t tolerate this subversion of Trump’s victory. The call to march on Washington, in and of itself, is nothing. Marching on Washington is the most American thing imaginable. Taking into consideration the imminence requirement set forth by Brandenburg, one would be hard pressed to establish a case for inciting violence based on tweets leading up to January 6th.
Moving slightly up the chain to Cruz and Hawley and their ilk, things don’t change much. While certainly they wield more influence than MagaPatriot81433054, they managed to couch their rhetoric in a way that is far from an obvious call to illegal action, let alone a specific call for violence. While an argument could be made that they know better and perhaps should be held to a higher standard, in terms of Freedom of Speech protections, we err on the side of protection.
And now, what about Trump? Our leader for the time being, whether we like it or not, stood in front of the revved-up crowd that day, just down the street from the Capitol, and implored them to march down there to “take back our country…show strength…be strong.”
And so, they went, likely feeling as though their aims had been sanctioned by their hero and leader. They went right after he gave the order. It doesn’t get much more imminent than immediate action. So, it’s incitement, right? Brandenburg is satisfied, isn’t it?
Well, what exactly did he tell them to do? Walk down there, he said. Show strength. Take back our country. Words that no doubt gave more than a few people listening the resolve to do what they then did. But it is important to note that he did not say go in the Capitol. He didn’t say get in there and break things, steal things, terrorize members of congress.
It is quite fairly argued that he didn’t say those things because he knew he didn’t have to, that he should have known and probably did know what a powder keg he was lighting with his words. No one can seriously suggest that Trump was unaware of the rhetoric online or the overzealousness of his supporters; he is much too online for that. But again, this is the First Amendment we are analyzing. Combine with the reasonable doubt requirement of a criminal conviction, and prosecuting Trump for his words that day becomes a very tall order, in my opinion.
This is not to say his words and actions — and those of Cruz and Hawley — weren’t repugnant. Contemptible. Deserving of any political and social consequences that may follow. But they probably managed to just tiptoe the line of criminal without crossing. It is reasonable to argue that their rhetoric is to blame for what occurred, but moral blame is not the same as criminal liability. Free speech is not absolute, but it is pretty darn near.2
Finally, let’s address the issue of social media deplatforming. Trump lost his Twitter account, and now many others of a conservative stripe have been suspended. Then, Apple and Google Play took Parler, the MAGA-dominant Twitter competitor, out of their app stores because of a lack of moderation allowing explicit threats of violence on the platform. Personally, I disagree with their actions on principle. Silencing these voices does not change their opinions or stop their actions, but it does make them harder to trace. I suppose there is an argument for preventing spreading of dangerous thoughts and suggestions to others vulnerable to influence, but that is a precedent we should be very careful about setting. In any event, Google, Apple, and Twitter are not our government, no matter how much Jack Dorsey might want to be an overlord. It is not First Amendment censorship.
Seeing our Capitol in peril was frightening to many. Certain things are sacred to Americans. The Capitol is one of these things; the First Amendment is another.
- Despite the title of this post, “fighting words” are distinct from “speech that incites violence,” though both are limited but recognized exceptions to First Amendment protection.
- To be clear, I do not argue or suggest the actions of the Capitol infiltrators were protected First Amendment expression. Not at all.
So how do you see the internet deplatforming and the now infamous Section 230 battle the President tried to wage?Report
Not answers, but add-on questions. The value of social media, like the value of the telephone network before them, is that everyone is attached; if everyone is attached, it becomes impossible to police. How to resolve that conundrum? Smartphones are now the predominant general-purpose computing platform for most Americans. Can we continue to allow Apple/Google almost complete control over what software can be run on them? It seems to me an almost sure thing that Amazon violated their “we will never look at the data you store in our cloud” promise. What will be the fallout?Report
I think the only honest answer is that it raises novel legal questions we will be answering over the coming decades, probably far more slowly than is ideal.Report
I don’t think Amazon had to actually look at the data stored to see what was going on.Report
FWIW, I feel quite certain that AWS never looked at any of the data, from the inside. Anything they got, they took through the front door – they got accounts and followed people. Maybe they got complaints and investigated them. As we know, it just wasn’t that hard to find.Report
It’d be interesting to me to see how many people that argued against Net Neutrality – saying it was absolutely fine, if your ISP chooses to prioritize ‘net traffic to their more profitable customers, over their less-profitable ones – are now upset that the Googles and the Apples and the Facebooks and the Twitters are essentially rerouting traffic ENTIRELY around/away from a “customer” they see as Bad for Business.Report
The protestors in DC are having their names put on the no fly list. Oddly, few, if none, of the BLM protestors were put on that list. The list is a joke and completely wrong, but it still exists and is being used to against one side.
Where do you think this will end?Report
Well lets see – BLM protestors didn’t commit a violent insurrection against the U.S. Government. But sure, keep up the whataboutisms.Report
“a violent uprising against an authority or government.”
Gee….BLM protests “Everyone” supported that. That fits the definition too dude. Your bias is plain.Report
Resisting injustice, committing injustice…its really al the same innit?Report
No one in the BLM protests advocated overthrowing legitimate elections. No one in BLM attacked the Congress. No ne in BLM suggested we should hang the Vice President for doing his job.
Your Bias and your preference is screaming like a drunk football fan.Report
This is one of those things like when the military says “it is not true that the Navy encountered an object confirmed to be extraterrestrial in origin on March 3rd at 10:38 PM.”
There’s a lot of precision in there and it addresses my concerns about whether the Navy encountered an object confirmed to be extraterrestrial in origin on March 3rd at 10:38 PM.
And yet the amount of precision still leaves me with questions.Report
This is one of those things where person 1 says A and B are the same.
Then person 2 says from one pov, call it X, they are the same. But from the pov of Y, A and B aren’t the same.
Then person 1 says so you agree that they’re the same.
And person 2 says well, and shakes their head.
Wait, no this conversation never happens on the internet.Report
I agree that the precise things that Philip H said did not happen did not happen.
But pointing out that those precise things did not happen does not really address the underlying point.
Ah, well. I imagine that we’ll see another enthusiastic mass gathering when the weather turns around again in 3-4 months after yet another altercation gets caught on video.
(And, if I’m wrong about that, point that out! “You said that there would be riots! And there were only mostly peaceful protests and violence was limited to property damage!” or the like.)
And we can have these conversations all over again. Whee.Report
This would be a good point for someone to clearly say just exactly what is this “underlying point”?
Can someone say it, in simple English words?Report
The continual and constant pivot between “there is an underlying principle here that in important and must be followed!” and “well, you have to understand how complicated the world is…”
Stories like this one that talk about, ahem, “Riots are destructive, dangerous, and scary — but can lead to serious social reforms”. (Check out the subhed: “To prevent more violent uprisings and protests, we need to take their causes seriously.”)
And, yes, the guy who wrote that piece has since apologized for it:
German, the next day, explained:
If I were to say it in simple English words, there have been a bunch of criticisms of the Mostly Peaceful Protests of the last few years (and certainly last year’s) and those turned into discussions of the importance of Protest Theory and the Legitimate Grievances of those who were protesting peacefully (though, granted, we cannot condone *ANY* violence but, you have to understand, Martin Luther King Jr. had an interesting quotation about riots that might be worth meditating up). And now we’re further down the slippery slope and, suddenly, there is not only a huge hurry to apply the brakes, there is a discussion of the importance of the imposition of Law and *ORDER*.
Without any seeming knowledge of shit that happened over the last 5 years. Without any seeming memory of whether these things were even talked about over the last 5 years.
Anyway, I imagine that we’re going to see more of this shit because we can’t agree on when the foundational principles need to apply. Hell, we can’t even agree what they are. (Lest we find ourselves having to apply them when it’s *OUR* turn to hold the whip.)Report
1. The worst violence was committed by rightwing actors; They burned a police station, and murdered several police officers;
2. The vandalism and looting was done without the urging or blessing of BLM leaders, and we have evidence that much of it was instigated by rightwing agitators who were opposed to the goals of the protests.
3. The goal of the protests was to prevent injustice. The goal of the rightwing violence was to inflict injustice.
These are simple facts. There is no “pivot”, there is no contradiction there is no equivalence.Report
Without any seeming knowledge of shit that happened over the last 5 years. Without any seeming memory of whether these things were even talked about over the last 5 years.Report
The worst violence over the past 5 years has been rightwing violence.
The worst violence over the past 20 years has been rightwing violence.
The worst violence over the entire sweep of American history has been rightwing violence.
This is known to everyone, except those who want to forget history and “pivot” to new talking points.Report
Are we measuring using dollar amounts?
Lives lost?
Lives-In-Very-Specific-Categories lost?
Is September 11th now categorized as “right-wing”? Omar Mateen’s incident is “right-wing”? San Bernardino is “right-wing”?
Hell, maybe the guys who shot the children in the CHAZ/CHOP were Nazis. That’s how the incident was first reported, anyway. And, you know… the fact that no arrests have been made about the murder of a black child is strange, don’t you think? Would the CHAZ/CHOP as a whole have to be rethought as right-wing violence?
Q.E.D.Report
By any measure you wish, the rightwing still holds the title for worst [domestic] violence in American history.
If you want to include [foreign] actions, the claim gets even stronger.
The Royalists, the Confederacy, the Axis powers, Al-Queda…these are all rightwing groups whose sworn enemy is liberal democracy.Report
“I am, of course, counting most of the 20th Century deaths as right-wing because the tyrants in charge of those countries were right-wing tyrants, as we now understand the term.”Report
And now we’re arguing about whether the Great Leap Forward was as bad as people say it was, with perfect hindsight, rather than about how vigorously to apply the brakes.
Anyway, I’m expecting us to get some serious anti-BLM legislation with “Anti-Trump Riot!” packaging written on the tin and people will be snatching it up and yelling “WHAT A BARGAIN!”Report
No, you’re arguing about it, because people here fall for your DARVO bullshit, instead of just writing you off as a bad faith troll.
Hey everyone, JB is a bad faith troll, and obviously so. Learn to recognize DARVO tactics and don’t fall for them.Report
DARVO: Deny, Accuse, Reverse Victim/Offender
We’re going to see a *LOT* of DARVO in the coming months.
Because there are a *LOT* of Offenders out there. And a lot of victims. (And it’s not binary. It’s, like, two separate continuums.)Report
No one here is talking about Chinese history except you.
And before we pivot to the Holomodor, lets keep on track that the subject here was the claim that BLM is equivalent to the MAGA insurrection.
It isn’t, and even after we keep debunking the claim, it gets repeated.Report
What measure are we using? Dollar value? Lives lost?
Who/whom?Report
Whoever makes the claim that BLM is the same as MAGA, should tell us.Report
I wouldn’t claim they’re the same.
I’m someone who thinks that they are both bad.
But if I were to compare them, I’d ask “what are we comparing?”
(For what it’s worth, I think that the Trump Riots will result in more bad stuff for you and me and him and her and everybody over the next decade than the BLM Mostly Peaceful Protests… but that’s because the BLM Mostly Peaceful Protests were memory-holed. So on the basic of that alone, the Trump Riots were worse. But if we wanted to start calculating dollar amounts or lives lost, I’d be interested in comparing those numbers too.)Report
Why do you think BLM is bad?Report
I worked on the staff of a western state legislature for too long. I saw your question and automatically reared up with fingers poised to spew.
I was always told that the unofficial motto of the Western Governors Association staff is “Do you know what those d*ckheads at BLM have done now?”
Bureau of Land Management, established in 1946, for the uninformed.Report
But if we’re talking about the motte, I’m a fan of the motte. It’s the stuff in the bailey that I find myself not a fan of.Report
You must be on the horns of a dilemma, then.
You really want to get rid of police unions, but the only entity in American politics than has any chance of accomplishing that is BLM.Report
Not particularly?
Because I have no problem agreeing with certain goals of organizations while disagreeing with other goals that they may have.
I would, for example, enthusiastically support the Black Lives Matter take on marijuana legalization.
Remember Killer’s Mike’s speech back in May?
I think I would be hard pressed to find a single sentence in what he said that I disagreed with.
To the extent that BLM is what Killer Mike is talking about, I agree with Killer Mike.
To the extent that BLM also contains the stuff that Killer Mike is telling young people not to do, I disagree with BLM.
But I’m not going to No True Scotsman the stuff in BLM that I disagree with and I’m not going to pretend that the stuff in BLM that I disagree with wasn’t part of the burning of cities this summer.
But if BLM wants to set up civilian review boards? I’m on board. If BLM wants to get rid of police unions? I’m 100% on board and I will cheerfully argue against people who argue for the status quo. If BLM wants to legalize pot? HELL YES.
If BLM wants to burn a building? Yeah, you know what? I don’t support BLM.
But I do support civilian review boards, abolishing police unions, and ending the war on drugs.
And to the extent that BLM can focus on those things to the exclusion of the weird stuff that privileged white college students are on board with, they can count on my support. (Hell, let them get a candidate who runs on this stuff up there. I’ll write a post arguing that you, yes you, should vote for them too.)Report
The way you describe BLM, they sound pretty good, certainly better than the MAGA types who tried to murder the heads of Congress.
So I’m puzzled by the repeated equating of the two groups as “both bad.”Report
Yeah, the motte sounds great.
But you know the the parts that you feel you have to attribute to Enemy Action?
Those are the bad ones.Report
What are the Bad Parts?
Maybe I would be sympathetic, if you only offered some examples.
Otherwise it just sounds like a strained attempt to contrive some reason to oppose them.Report
Ahem: “But you know the the parts that you feel you have to attribute to Enemy Action? Those are the bad ones.”Report
Wow, it must be terrible, if you can’t even mention it by name, like BLM is in league with Voldemort or something.Report
It’s not that I can’t. It’s that you have already given examples of things that you say must be enemy action.
I’ve given examples of Killer Mike speaking to Atlanta and asking them to not set the city on fire.
We’ve had no shortage of stories all summer long discussing the enthusiastic mass gatherings from the CHAZ/CHOP to the various fires that newsmen stood in front of while saying that most of the protest was peaceful.
And, yes, we’ve discussed all summer long the need to reform the cops… and those discussions have been punctuated with discussions of the buildings being burned and businesses closed down and people explaining that insurance exists.
Stuff like this:
Now, if we are hammering out how thing A is worse than thing B, I’d like to know what we’re measuring and we can hold those numbers up to each other.
What numbers are you using? Dollar value destroyed? Lives lost?Report
OK, so you don’t like the fact that BLM lost control of their protests and some degenerated into chaotic riots.
OK, fair criticism, one I share. BLM should be more disciplined and keep better control over their group.
Do you really see this as equal to MAGA trying to overthrow a free election, such that you can wave a hand across both and call them both bad?
Regarding metrics, its already established that rightwing groups have done more destruction by any measure so that doesn’t help your case.Report
OK, so you don’t like the fact that BLM lost control of their protests and some degenerated into chaotic riots.
This has nothing to do with what I “like”.
Do you really see this as equal to MAGA trying to overthrow a free election, such that you can wave a hand across both and call them both bad?
I am not calling them equal.
But the MAGA rally being bad (even being *WORSE*) does not make the BLM stuff magically “not bad”.
Regarding metrics, its already established that rightwing groups have done more destruction by any measure so that doesn’t help your case.
What metrics are we using, again?
Dollar value destroyed? Lives lost?Report
Yes, dollar value, and yes live lost, and more besides.
In terms of influence on our systems of politics and justice, the rightwing extremists have been more destructive, all throughout American history.
Black civil rights groups like BLM have never had anywhere near the level of destructive influence that rightwing groups have.Report
So we’ve switched from the Trumpist insurrection to World History.
Was I supposed to not notice?
Because if we’re comparing the Mostly Peaceful Protests this summer to Civil War deaths, I’m not sure we’re comparing apples to oranges anymore.Report
No one has been talking about World History but you, so lets not digress.
We are comparing the BLM protests to rightwing violence.Report
Okay, because when we started, we were talking about the Trumpist Insurrection.
Or I was. I still am. (Or I’m trying to.)Report
Without any seeming knowledge of shit that happened over the last 5 years? Without any seeming memory of whether these things were even talked about over the last 5 years?
OK, lets compare the violent rightwing Trumpist insurrection to BLM.Report
I would be fine with re-litigating 2015 and 2016, but that means that we’re no longer comparing the Trumpist Insurrection with the enthusiastic mass gatherings that took place this summer.
Which were the apples that keep not getting compared.Report
Great, lets compare them.
One protest was against injustice, was poorly planned and let bad actors take advantage to cause destruction, even allowing self-described false flag actors commit murder and arson.
The other was to overthrow a free and fair election, and urged the murder of the Vice President and led to the deaths of 4 people.
Like I keep saying, I’m mystified by any attempt to equate the two.
One was good in intent, but flawed in execution.
The other was utterly without redeeming qualities.Report
even allowing self-described false flag actors
Golly! This must have been a heck of a revelation when it came out!
If we’re comparing intentions rather than outcomes, I guess that’s okay. It makes sense, I guess.
I’d like to know how we’re measuring the intentions of the people in question, though.Report
I start by taking their own statements unless there is evidence otherwise.
The stated goal of BLM to get police to stop mistreating them.
The stated goal of the insurrectionists was to overthrow a democratically elected government.Report
Well, I have no desire to find interesting chants made at the various mostly peaceful protests and be told that these chants are *NOT* representative while these other chants *ARE* representative.
I’ll just say that we’ve had a year of enthusiastic mass gatherings. We’re fixing to have more.
If we want fewer, I think that part of that is saying “enthusiastic mass gatherings are bad and the cops should arrest and charge the people participating in the enthusiastic part of them” and not “these enthusiastic mass gatherings don’t count because the people who were bad were self-described false flag actors.”
I think that the book oughta be thrown at the rioters.
Especially the false flag ones.Report
If we want fewer protests we could…and bear with me here…
We could vote for police reformers who will break the power of police unions and prosecute the guilty ones, and vote for city councilmen who will provide more funding for social services.
We can also then, with just as much vigor, prosecute the bad actors.Report
And it’s time to bring this point up again:
While I appreciate the argument that now, with Joe Biden and Kamala Harris in the White House, we finally have an opportunity to reform the system in such a way that people won’t feel the need to protest against it anymore…
I’m going to guess that if this were a problem we could have voted our way out of, Minneapolis wouldn’t have happened in the first place.Report
This is where contrarianism becomes indistinguishable from a defense of the status quo.
You’ve been shown actual examples of reforms working (Camden); You’ve been shown examples of reformers being elected thanks to BLM (George Gascon in LA);
Yet you don’t want to endorse any political party; You don’t endorse any political ideology or group or movement;
Instead you find fault with them all for various reasons and label them as all bad and unworkable.
And hey, if that’s your honest opinion, have at it!
But you can understand then, why people say that contrarianism is really just a reactionary defense of the status quo.
Because if actual change ever does happen, you really, really, don’t want to take any part in making it happen.Report
I was the one who posted about Camden, Chip.
You say that I’ve been shown examples of reformers being elected and use people elected 2 months ago as examples of reformers… but you’re not really showing me any reform victories.
It’d be like pointing to Biden as a major police reform victory.
I mean, maybe he is! I’m going to give him a chance! (Harris too, for that matter!)
But if we want something like the policies that Oscar mentioned in his wonderful post, we’re going to have to call for the policies in his wonderful post and point out when the parties that we’re voting for end up doing something that inspires us to say “well, you have to understand…” instead of “yes, that is, in fact, WRONG”.
But we’ll get to see what happens this coming House session.
We’re going to see a lot a laws passed dealing with Enthusiastic Mass Gatherings in the First 100 Days.
Keep track of them.
You’re going to see them applied.Report
We’re citizens.
We don’t need to just “get to see” what happens.
We get to make it happen.
Like, there are members of your city council, state legislature, and Congressional delegation who are likely to be persuadable, if only they had activist citizens like you who would courageously defend them, flawed as they may be.
There are members of the Democratic party who are eager to apply the motte of BLM, if they had the support of people who wouldn’t just wave a hand over the entire party and movement and declare it “bad” or equal to the opposition.Report
We don’t need to just “get to see” what happens.
Well, after we see what happens, at that point we get to say either “WHAT THE HELL! WE VOTED FOR REFORM!” or we get to say “well, you have to understand, the world is really complicated…” and explain that, no, we need to keep something close to the previous system, maybe some light reform, a new coat of paint… perhaps a new training program…Report
But this is the point-
You seem more interested in the prospect of accusing fellow activists of hypocrisy, than working for reform.
Like, you have already constructed hypocritical arguments by your fellow activists, and already determined that they failed yet again to achieve your goal and already skewered them with your lacerating insight. You’re really just doing the purity schtick.
Which is really just a sly way of supporting the status quo.
Because this purity schtick is just that, a pantomime that proclaims an insight, but conceals a refusal to grapple with how change actually works.
Because yes, the world really IS complicated, and getting a city council to do even the simplest of acts is a herculean struggle and the path towards breaking police unions and ending the drug war is going to be really long, really messy, and involve all sorts of “well you have to understand” compromises with people we’d rather not deal with.
If this isn’t your thing, fine, you do you. Most people hate politics because of this.
But realize this is why your lacerations of hypocrites doesn’t pack any punch because it doesn’t reflect a real grasp of how the process works and it isn’t supported by any real argument of what should be done. It’s just “those bozos in Congress” from the corner barstool.Report
And so I will continue to slyly work towards support of the status quo by pointing out politicians who do stuff like veto bills sent to them by reformer representatives, call for policies like “rescheduling marijuana” and “ending the drug war”, and finding research that supports the policies that I am pushing for and sharing it with people online.
And I will continue to support the status quo like that.
Even in the face of people who tell me that the world is complicated.
(I’ll continue to do my dinky little part offline, of course. But comment boards have only but so much elbow room available.)Report
A genuine national security situation – game, set, match.
This isn’t even close and any attempt to turn this into some kind of intellectual discourse goes nowhere.
Q always talks about the “Deep State” and now they’re about to meet the real Deep State – the national security apparatus.
And the social media platforms? Consider the possibility that they’re taking defensive measures because their lawyers are telling them that they’re potentially in deep shit. They had no problem allowing Trump to spew his endless stream of crap until they realized that it may have had something to do with what happened in the Capitol.
The whataboutism that I’ve seen on Twitter, much from what I’ll refer to as “anti-Left” Twitter is so morally and intellectually bankrupt that I’m almost personally embarrassed to have ever found those people and positions somewhat persuasive.
That shit’s gotta stop. Nothing personal.Report
No, it’s fine. I’m not taking it personally. It’s a good point!
I am, however, noticing that we had cities burning all summer long, businesses destroyed, and, yes, people killed and we saw explanations of how the police were corrupt, business owners had insurance, and the protests were being overblown (and, besides, the worst acts were false flags).
And we’re going to see the national security apparatus come down like a ton of bricks on these idiots who went to the Capitol and had themselves an old-school riot.
The national security apparatus works well, when it needs to.
My argument isn’t “whatabout the riots this summer?” but “P led to Q. Q led to R. R led to S. S led to T.”
Ugh. That bullshit conspiracy stuff has ruined propositional logic.
Anyway, the patterns of the last 10 years or so mirrors patterns in history. Saying that stuff follows from other stuff isn’t excusing it. It’s pointing out that P and Q and R and S weren’t *THAT* bad but *T* is bad is excusing P, and Q, and R, and S.
Even though they lead to T.
U is around the corner. V happens after that.Report
To step out of the propositional logic for a bit:
If protests against the government (local, state, and federal CJ systems) are seen as legit and the violence that stems from those protests is downplayed and excused because reasons, one should not be surprised when another group (who (AFAICT) legitimately believes the federal government violated what they believe to be their rights and went against the will of the people) has a protest that gets out of hand and turns into a riot.
In short, don’t excuse or minimize behavior you really don’t want, because that is often seen as a soft endorsement of said behavior.
Take this back to my police violence hobby horse. We should absolutely NOT excuse or minimize an officers inappropriate use of force just because the office is an honest to FSM hero or the person on the wrong end of the violence is an honest to FSM horrible person. Doing so just tells the not so heroic, not actually nice person officers that it’s OK to be violent, as long as you are seen as heroic, or the other guy is seen as a dirtbag.Report
Where I see things going:
The Trumpist Insurrectionists are going to have the book thrown at them.
The stuff I saw discussing the sentencing guidelines for the laws most immediately applicable to a majority of the Insurrectionists said that it was likely that most of those guys would get 6 months to a year.
This was presented as an outrage and examples of less egregious crimes with longer sentences were given as comparison points. (Including, of course, incidents from this summer.)
I’m guessing there will be 5-10 people who will get a *LONG* sentence (including the Viking shaman) and the majority of people will get 6 months and a majority of those people will quietly get time served + probation. The people who stayed outside of the building and don’t qualify for so much as trespassing will probably get enough charges to have the off-duty cops who were there get reprimanded and the soldiers who were there something other-than-honorably discharged.
As such, the emphasis will be on the 5-10 guys who will get the big sentences (the guy who stole a letter, the guy who stole a lectern, the Viking shaman) and, if you ask me, the smart thing will be to yell “NOW NO MORE OF THIS CRAP”.
But we’re still going to have a covid lockdown and people who get groceries will still be trying to kill gramma and whatnot and there will be an incident with police officers that will go viral (May? June?) and we will have 93% peaceful gatherings.
And there are people who will have watched the protests all last summer who believe that most of the protesters had prosecutors play catch and release and who believe that everybody at the Capitol got a decade in the clink.
And there will be people who saw most of the 7% last summer go to jail for years and years who saw that, other than the ones inside, the Capitol Insurrectionists got hit with “Jaywalking” and are out walking around free.
And people will be holding their breath.Report
Then it is vitally important that DAs and everyone else make very clear the distinction between a riot in some city or even attacking an empty federal building, and storming the capitol while congress is inside and in session.
You can play a little catch and release when it’s just property damage. It’s a whole other ball game when you go after the people in charge.Report
The people who were outside the capitol shouldn’t be charged with anything. Protest is a very important right. Nor should they automatically face consequences to their employment, provided their contract doesn’t have some clause that prevents all political involvement. (I think there is something like that for uniformed military. I’m not sure what the rules are for police, but personally, I don’t think that merely attending a rally should be disqualifying.)
This, of course, changes if they were carrying some inflammatory sign, or said something awful in an interview. If I discovered a local police officer was there with a “Stop the Steal” sign, I would be very disappointed in them for being an idiot, but that is protected speech. If they had a “Hang the bastards” sign, never mind an Auschwitz tee shirt, that’s different.
Anyway, we need to stay focused on the people who entered the capitol.
(And why the heck is it spelled capitol instead of capital? English is weird sometimes.)Report
Well put.Report
Agree with that all.Report
“The vandalism and looting was done without the urging or blessing of BLM leaders, and we have evidence that much of it was instigated by rightwing agitators who were opposed to the goals of the protests.”
What evidence do you have in mind, here?Report
Off the top of my head, the video of that white guy smashing the Autozone windows in Minneapolis, along with my own personal observation here in LA where the window-breakers were all young white men.Report
A racist broke a few windows and that provoked the BLM protesters into burning down the store.
And this is evidence that the protesters aren’t at fault (or dangerous) and it’s totally on the racist.
Granted, the racist is a problem.
However this also showcases the other problem, which is the lack of lines between the “protesters” and the “rioters”.
A little bit of provocation and stuff burns. It doesn’t even need to be actual provocation, it can be perceived provocation.Report
That is true.
And I agree, BLM is being irresponsible in not disciplining their marches.Report
There were a few cases of right-wing agitators at BLM protests. However, keep in mind, there were many BLM protests, in many cities, spread over many weeks. Moreover, there are elements on the right who would be motivated to do this. First, there is the “boogaloo” set, who are crazypants accelerationists, who dislike the stated goals of BLM, but who want to foment chaos — with the ultimate goal of a race war. Think of them as junior Charles Manson wannabes. Then there are more cynical groups who specifically want to discredit BLM.
Anyway, given the scale of the protests, and given an ounce of common sense, one would expect some degree of outside agitation.
That said, it would be painfully naive to conclude that all vandalism and rioting associated with BLM was outside agitators. Of course it wasn’t. Obviously. Duh.
The assault on Capitol Hill was a single event, on a single day, in a single place. The goals and motivations of the participants are well documented. Specific actors have been identified and arrested. Much of their background is available with a simple websearch. As far as I can tell, there was zero BLM or antifa related agitation during this event. There didn’t need to be. The maga chuds were clearly going to do that all on their own.
It seems that antifa decided to simply skip this event. I’m actually not sure why. I have a theory. First, they tend to be very aware of what the maga chuds are planning — after all, the maga crowd absolutely sucks at opsec. Their networks are trivially easy to penetrate. It was clear that this would be a shitshow, and many of the militia oriented chuds were openly planning to bring weapons.
By and large, antifa has zero interest in armed conflict. The “black bloc” sorts mostly emerged from the punk community, where fistfights were commonplace. Guns are a different level of escalation. Attacking congress during an important procedure is not the sort of thing that would attract antifa involvement. One would assume that the police and national guard are well equipped to deal with the situation (except — well about that).
Anyway, there is an intergalactic void between burning down a Wendys and trying to overturn a democratic election to install a “president for life.” I’m 100% certain that everyone here understands that difference. Thus, pretending there is no difference is intellectually dishonest. That is all.Report
True. On the other hand, I expect if we asked them what they thought they were doing it’d be something like “stop the steal”.
They can probably argue as fervently for that as BLM can argue that redlining and slavery still controls our fates.
And BTW I’d argue that Trump’s firing up a riot and getting people killed shouldn’t be limited to one speech. He did a lot of groundwork before that.Report
And, if I’m wrong about that, point that out!
Are you incapable of admitting those things on your own?Report
I still have predictions for 2025 floating around in the comments from 2014 or so. If someone says to me “you said that there’d be a black market in health care by 2025 and there’s *NOT*! YOU WERE WRONG!”, that’d be a quick and easy way for them to yell “IN YOUR FACE!” at me and I would be left sputtering having to dig up examples that would get other people to say “that’s not a black market, that’s only a *GREY* market!” or what have you.
But, come 2025, I’m not entirely sure that I will remember the black market prediction. I mean, maybe I will. But I don’t know that I will.
By the end of May Day, we’re either going to have enthusiastic mass gatherings or we won’t, and they will either have people show up to the gathering (not affiliated with it!) who engage in violence (and the gathering itself shouldn’t be blamed for this).
And it could well be a couple of days into May before I remember saying “hey, didn’t I make a prediction about this?”
So, I’m capable at doing these things on my own but if they’re things I’ll have forgotten about by then, I might not remember. Like, by definition.
So, to answer your question: No, but I remain fallible not only in my predictive powers but also in my ability to remember stuff.Report
that’d be a quick and easy way for them to yell “IN YOUR FACE!” at me
Bizarre.Report
(I figure that by offering free endorphins to people, they can help me refine my prediction algorithm.)Report
This is the oddest way of phrasing trolling i’ve ever heard. Huzzah.
But really…”offering free endorphins” is just trolling no matter how you dress it up.Report
Greg, I’m not only giving my opinion, I’m making a prediction.
And if I am wrong, I wish to be called out and told that I was wrong. Being wrong about this tells me that I’m thinking about things incorrectly and that’s something that I very, very much want to stop doing.
(And, somehow, we’re in a place where this is seen as aberrant behavior.)Report
Jaybird, what you don’t understand here is that they don’t want to show that you’re wrong, they want you to decide that you’re wrong. They don’t want to win; they want you to lose.Report
Frankly, it doesn’t matter what the TARGET of the violence is, it’s that the violence is being committed. And BLM was all up in the violent category. You either endorse the use of violence to achieve your political goals or you don’t. Choose. Many on the left chose “violence”. Now the right has said “ok” we will too. We have a window to crawl this back to normality, but I’m not seeing anyone care to do that. All they care about is “winning”.Report
Once again – BLM doesn’t practice or preach violence. People showed up at the BLM marches, not affiliated, and committed violence. They have been condemned by BLM and everyone on the left.
Once again some people who went to the rally on Wednesday committed insurrection against the US. They did so as part of their in-group’s attempts to keep power. They did so with the tacit encouragement of the President, sitting Senators, and sitting Congress members. Not the same thing dude.Report
Keep in mind that there was a period where some folks were excusing or encouraging the violence, and the right put them on blast. Once they got a clue and walked that back, those statements were not put on blast.Report
Keep in mind that trying to dismantle the systemic racism and white supremacy in the US is not the same things as invading the US capitol to preserve that supremacy. While one may well beget the other, it will never make them morally equivalent.Report
That wasn’t me point. I was addressing the violence is OK vs not OK argument.
It’s easy to lose sight of people changing their minds about something when only half of the process is projected loudly.Report
Yeah “They did so as part of their in-group’s attempts to keep power. They did so with the tacit encouragement of the President, sitting Senators, and sitting Congress members. Not the same thing dude.”
Not at all like the mayor or Portland backing the protests and demanding the federal troops leave. Not at all.Report
The mayor of Portland – an elected official – was speaking to other government officials about government actions.
Again, not the same thing as 8000 people peeling off a Trump rally and breaking into the capitol committing insurrection to stop electoral vote counting and kidnap and kill elected officials.
But keep on keeping on dude.Report
No true Scotsman practices violence.Report
Sadly, Damon seems to have succeeded in creating a large thread distraction.
Here are the things that are true:
1. BLM’s stated goal was peaceful and legal
2. Violence occurred, and crimes were commited, at BLM events. By both police and civilians, and by those seeking to support BLM and to undermine it. The people who committed those crimes should all face the consequences.
3. To the extent that people believe the crimes were nevertheless justified, the perpetrators should STILL face the consequences (e.g. MLK was arrested for breaking laws).
By contrast, the goal of the MAGA insurrection was to commit crime, and everyone who entered the US Capitol by force intentionally committed a crime by doing so. Moreover, the stated goal of the protest was to install an unelected leader in the presidency.
So, by the consistent logic of “if you break the law, you face the consequences” every single person who entered the US Capitol by force should be arrested and prosecuted.Report
It is CURRENTLY being used against one group (people ID’d in the building, etc.). It’s been used against Muslims and leftists for years.
It really is an equal opportunity tool of oppression by LE.Report
After decades of anarcho-conservatives going out of their way to defund the police, don’t we, as responsible citizens, have a responsibility to start giving law enforcement the tools they need to protect us instead of leaving us vulnerable?Report
I’m not sure they lack Constitutionally allowed tools. In Chicago, all they complain about is not being able to relive the Burge days.Report
The idea that cops only use constitutionally allowed tools is what needs reconsidering.Report
Great piece. Thanks for writing it.Report
Thank you Kristin!Report
A sidenote about what QAnon is, or at least how it functions: this fascinating piece makes the case that whoever is running it (to the extent anyone is), it may be a “game” instead of (or in addition to) a “cult”. Albeit one with terrible real-world consequences.
The cyberpunk dystopia we’ve gotten is every bit as weird as predicted, though substantially dumber.Report
Thanks, that’s super interesting!Report
On one of the Sunday Shows, former WH Chief of Staff Mick Mulvaney said he was shocked that anyone had taken the President seriously. So yeah, it really is all a big game to some warped people.Report
Deuteronomy 18: 20-22
But the prophet who presumes to speak a word in my name that I have not commanded him to speak, or[f] who speaks in the name of other gods, that same prophet shall die.’ And if you say in your heart, ‘How may we know the word that the Lord has not spoken?’— when a prophet speaks in the name of the Lord, if the word does not come to pass or come true, that is a word that the Lord has not spoken; the prophet has spoken it presumptuously. You need not be afraid of him.Report
From what I understand, pretty much everyone heavily involved in studying the Q movement has fingered the creator of 8chan as “Q”.Report
You mean the pig farmer in the Phillippines? The one who doesn’t have to actually live through it on American soil?Report
Like JS, I thought the likely creator of QANON was the pig farmer and his son who created or co-created 8chan. In other words, it is the ultimate shitpost for the lulz. This makes a lot of sense to me but tragically so.Report
I’m curious about a legal principle here. In movies, mobsters will often say something like, “This is a nice store you have. It would be a shame if something happened to it.”
Note, I have no idea if real-life mobsters talk like that, or if they ever did. However, it is a well understood property of language (at least English), specifically of saying one thing but meaning another.
I assume that this sort of thing shows up in criminal trials, where the defendant didn’t literally say what they’re being accused of, but they still meant it, and everyone knows they meant it.
My assumption is that juries are allowed to conclude the obvious, that although the accused didn’t literally say they were going to destroy the shop, it was their clear meaning, and thus they are guilty of extortion.
Am I right about this? Could such a principle be deployed against Trump?
(Clearly I thing it should be deployed against Trump.)Report
Yes, a jury can infer what they like from a defendant’s statement, barring instructions from the court to the contrary. But if it is the only proof offered of a necessary element of the crime, you’re in trouble. You’re going to need more than that to comfortably survive a motion for judgment of acquittal, or perhaps to even get an indictment.Report
That makes sense. Thank you.
May I ask another question. If hypothetically there was some meat to the accusations that law enforcement was deliberately understaffed and that there were “stand down” orders from the White House, could that be used in concert with Trump’s public statements to show sedition?
(I’m not sure if “sedition” is the correct word, but something along those lines.)Report
Off the top of my head, I could see it as an act in furtherance of a conspiracy more than a stand-alone offense. He made it easier for the rioters to riot, but understaffing did not actively prompt the rioting. I admit sedition is not an area I feel I can speak intelligently about.Report
I’d imagine there aren’t too many practicing “sedition experts” (a fact that sadly might change in the near future).Report
I seem to recall reading that the US is one of only a few countries in the world where “conspiracy” is an actual crime.Report
“If hypothetically there was some meat to the accusations that law enforcement was deliberately understaffed and that there were “stand down” orders from the White House”
considering that law enforcement was deliberately understaffed and had “stand down” orders from the city government, and that this was published in the news several months previously, there’s no need to point to the White House for anything at all…Report
UM no. Federal law enforcement doesn’t take orders from DC. Never has. Sure, the Mayor had asked them to keep a lower profile following their heavy handed response over the summer. But the capitol grounds – like the White House complex – are federal property where DC has no jurisdiction unless invited. In addition, the DC mayor has no control over whether the National Guard is deployed in DC.Report
(looks at the part he quoted) well hoss I don’t see anything in veronica d’s statement about Federal law enforcement specifically, so, I don’t see how your post is a rebuttal to anything I wrote.Report
DC as a city had requested that federal law enforcement keep a lower profile at demonstrations and rally’s over the winter. That the feds chose to comply is great, but DC Mayor Bowser has no more authority to FORCE them to stand down then the mayor of Portland did. Security at the Capitol is a federal matter in as much as the Capitol is a federal facility. The wrinkle is that the Capitol police are one of the every few federal law enforcement agencies that DOESN’T report to the WH since they are in control of the House and Senate Sergent’s at Arms.
You are playing an interesting semantic game designed to deflect – problem for you is after 11 years living in DC and working alongside a lot of those folks I have a way better understanding then the average Joe.
But you do you.Report
“DC as a city had requested that federal law enforcement keep a lower profile at demonstrations and rally’s over the winter. ”
…you know you just agreed with me, here, right?Report
Nope – DC government CAN”T order federal LEO to stand down. The asked, but no one above them in the chain was required to comply. Some chose to, but because Muriel Bowser TOLD them to.Report
Just to be clear: I agree with this analysis exactly as far as it goes. I think parsing political speech for crimes of speech-by-implication is a very slippery and dangerous slope. I think if one plans to arrest and imprison Trump, his statements at the pre-insurrection speech is not the right charge to bring. (If you’re looking for words to support a crime, the Raffensperger calls are the better source, and sure read like attempted sedition.)
That, however, has nothing whatsoever to do with whether impeding the orderly transition of power and urging a mob to resist the results of the election is impeachable, consistent with the terms of service on private company web platforms, or anything else. As always, to impeach does not require the commission of a crime for which the president would likely be convicted and imprisoned. It’s a totally different standard.Report
I suppose there is an argument for preventing spreading of dangerous thoughts and suggestions to others vulnerable to influence, but that is a precedent we should be very careful about setting.
I think the precedent has been set long ago, since both storefronts already reject apps on the basis of content. For example, I doubt anyone believes that Apple would sell an iPhone port of Concentration Camp Commander (or that Columbine first person shooter from a few years back, or quite a few porn games, or…) on its app store, and I’d be surprised if there are many people who think that Apple should sell such an app.
So the precedent was set quite some time ago, and it’s not at all obvious to me what would distinguish Parler from those other cases.Report
Hey pillsy! Long time no see!Report
Pillsy!
Here’s a link to what Steam said back in 2018 (that Columbine FPS one, I think, was exactly the game that inspired this).
One of the things that happened is that they said “we will ban games if it comes to that” and a whole bunch of amateur Tony Comstocks volunteered the names of games that they thought Steam should look at.
And Steam quickly said “KNOCK IT OFF”. (Apparently, they’ve been banning a bunch of games since then… but, like, ones from a particular Russian publisher and not games for showing too much gratuitous violence nor games that show graphic sexual content.)
Remember when we were arguing about the sexism in Red Dead Redemption 2? Good times.Report
Telegram (the app, not the, you know, medium) has announced how it’s growing by leaps and bounds.
WhatsApp shares info with Facebook, I guess, and that has a lot of the people who use it frustrated (because, when they originally got on it, it was supposed to be pretty securely encrypted).
But Telegram was written by a Russian dude and is centered in Dubai. So…Report
No, it’s not. At least, not of Trump’s speech. You can’t weasel-word your speech out of being incitement. Here’s the test as it stands:
There is an incredibly strict constitutional threshold for ‘imminent’. That is what the court cases often hang on, it really does have to be right the hell now. Like ‘turn around and do it’. Or, in this case, ‘Turn around and march to the Capitol and show how strong you are’…note people actually started leaving _during_ his speech to do as directed.
And there is also a strict test for ‘likely’, there are plenty of people who got away with this sort of thing because it wasn’t taken seriously by the crowd, and…they claim they knew the crowd wouldn’t do it, and they’re off the hook. However, if the listeners actually do the thing, the courts generally assume it was a ‘likely’ outcome, duh.
And…those are the only two parts of the constitutional test. The rest is not. There is no strict threshold on the exact wording of what is said. The speech does not have to urge any specific lawless action, it just has to be directed to producing such action. (Or ‘directed to move to action’, incite technically means, ‘move to action’.)
You cannot weasel-word yourself out of incitement. If your speech is directed to produce the outcome of either imminent lawless action or violence, and it’s likely to produce that outcome, congrats, you passed the constitutional test and can be charged with a crime!
It’s basically just intent. It just has to be intent with the intended results of a very very VERY specific thing.Report
And before anyone says: Proving intent is tricky…yes, it is.
I am not saying Trump could actually be convicted of this, at least unless some evidence of coordination between him and the protestors shows up…at which point he’s got a bit more to worry about than speech, that’s a criminal conspiracy.
I’m saying, his speech passes the constitutional threshold to allow criminalization of it, the question is merely whether he had any intent for the protesters to do anything illegal.
Hard to prove, yes, free speech, no. At least not according to the Supremes.Report
I’m not clear what part of what I wrote you are disagreeing with.Report
I guess we disagree that “let’s march down there and show strength” is enough to prove incitement of violence. I disagree. I don’t think it is.
When it comes to proof beyond a reasonable doubt, weasel words absolutely can save you, if that’s the only proof of that element you have.
I conceded that the imminence element was probably met.Report
Oh, is this the _violence_ you don’t think he met?
Okay, let’s assume he was merely trying to incite an out-of-control trespassing crowd.
But inciting any sort of lawless action is ‘accessory before the fact’ in DC, and you can be charged as a primary.Report
The only thing proven beyond a reasonable doubt by his words was that he told them to march down to the Capitol and show strength. That’s neither violence nor trespassing on its face.Report
This part and your conclusion of them:
The exact wording is not important at all. The important question is whether or not he wanted them to do anything lawless.
(Also important to note: Just trespassing is lawless. Whether or not we should charge people with ‘inciting trespass’ is perhaps a good question, but it _can_ be illegal, constitutionally speaking. And currently, inciting any crime DC is illegal and makes someone an ‘accessory before the fact’.)
You went over the actual constitutional test, which is very strict, and have a very clear line that has to be crossed for something to be imminent lawless action.
So it’s sorta easy to assume the ‘exact words said’ are a strict test too, and people are allowed to go up to that line without crossing it, and the constitution protects them.
But if Trump merely intended to cause any sort of imminant lawless action with his speech, he can be held criminally liable for that action.
People can incite crowds without telling them to do anything at all. If there’s an angry mob outside a police station ready to storm the place and string a prisoner up, it can be incitement to just stand there and calmly recite what the alleged crimes are and make _no_ suggestions. Do you merely intend the listeners to immediately do something lawless, but didn’t say it in any manner whatsoever? It still doesn’t fall under constitutional protections and you can be charged. (Assuming some law against it.)Report
Do you think you can convict someone based on the reaction of other people to otherwise benign words? Such as your example of calmly reciting a list of a person’s alleged crimes? You are wrong.
Also, marching to the Capitol is not illegal nor is it trespassing. They were allowed to be outside. He did not tell them to go in.Report
There is no Supreme Court precedent whatsoever that restrictions on speech under this principle have to be explicit or specific. You’re the one who’s been citing the court cases about this, that should be pretty clear. Although, you never mentioned what the law was _before_, and thus you never explained what new things these cases were adding as limitations.
Let’s let Oliver Wendell Holmes Jr. explain what speech is _really_ constitutional to bar, instead of the goofy fire in a theatre bit: The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.
You will notice a distinct lack of talking about words at all, and instead a focus on the outcome. The outcome is what it makes it constitutional to restrict. Whether the outcome created is ‘a clear and present danger’.
That was true for Schenck, that was true for Whitney, and it is true for Brandenburg. In order:
1) Under Whitney, Congress can ban speech that is likely to cause ‘bad outcomes’. The speech doesn’t even have to result in crimes, much less be advocating crimes!
2) Under Schenck, Congress can ban speech that will bring about to ‘substantive evils that Congress has a right to prevent’, which seems to means ‘things that are illegal or really bad like violence’.
3) Under Brandenburg, immediacy got added to that. Now the rule is speech that will bring about ‘Imminent lawless action or imminent violence’ as outcomes.
Basically, the Courts have always allowed restrictions on speech that is intended to result in [outcome], and is known to be likely to result in [outcome]. There’s never been a requirement that the speech called for that [outcome] in any manner at all, explicit or even implicit. The only thing that changed was what said [outcome] was allowed to be, from ‘bad outcomes’ to ‘illegal outcomes’ to ‘immediate illegal outcomes’. Those changes have been how the courts tightened speech restrictions up.
They haven’t said a single thing about ‘How much the speech has to explicitly advocate for [outcome]’, that is still as loose a requirement as it ever was….which is pretty damn loose.Report
Have you ever defended or prosecuted a criminal case that hinged on what someone says? I, as an experienced criminal law attorney, am telling you, you will NOT get a conviction on this and it would likely end at a motion for directed verdict stage, if you made it that far.
Accusing the speaker and the listener of mental telepathy isn’t going to get you a conviction. We don’t convict based on winks and nods.
I’m done having this argument. If you think I suck at explaining the law and analyzing cases, feel free to take over and do it yourself.Report
Ah, the whole Theory running up against reality problem.Report
So to this point – from way outside the legal profession – aren’t RICO prosecutions essentially ALL about establishing that telepathy? I’m not trying to be obtuse or Trolly (in a Jaybird sort of way), but to the reasonable person it appears thus.
And please don’t stop – we actually do need a couple well qualified lawyers around here.Report
The most excellent Popehat has at least one really good primer on RICO, where he lays out that everyone always seems to think that RICO is a great tool for whatever is offending you, but in reality, a successful RICO prosecution takes years of gathering evidence (wiretaps, etc.) and testimony precisely because it can not depend on said telepathy.Report
Here it is:
https://www.popehat.com/2016/06/14/lawsplainer-its-not-rico-dammit/Report
Thanks. Most educational.Report
It would be really funny if it was rico, just to see Ken White have to post, “Okay fine. This time it was rico. Now leave me alone.”Report