Kagan and the Conservatives

I haven’t had enough time to dig into soon-to-be-Justice Kagan’s record in nearly the depth that I would like, and I’m not expecting to have all that much time to provide a fitting analysis.  But based on what I know to this point, Daniel Larison’s take is right on the money:

Obviously, Kagan has enough votes to be confirmed regardless of what Republicans do, but it is a timely reminder how unimportant constitutional limits are to so many of the people who cannot cease talking about freedom here and abroad and how much many of them value a virtually unchecked executive. It appears that Obama has made a terrible choice, which is just one more in a long list of egregious decisions on civil liberties and the expansion/preservation of executive power. He should be excoriated for that, but unfortunately his opposition seems to have no interest in doing this. In an instance when Republicans’ reflexive, hysterical resistance to everything Obama says or does might actually serve the best interests of the Court and the country, they become indifferent or enthusiastic in response to one of his decisions. It would be a pleasant surprise if all the people who have been raging against the oppression of the health care bill could muster one-tenth of the intensity to challenge a nomination that could do significantly more permanent damage to constitutional liberty in the future than bad, unaffordable social legislation.

Indeed.  There’s more at the link, and I fully agree with everything there.  When Kagan is confirmed, it will be but one more step in the long and unabated pattern of Congressional acquiescence to the Executive, and abdication of its own institutional responsibilities that I identified a while back.  It would certainly be helpful if they realized at some point that their interests as Congress-lizards are not the same as the interests of their respective parties, and are definitely not the same as the interests of the Executive Branch.  We do not live in a parliamentary system, and Congress is supposed to be a coequal branch.  Unfortunately, Congress seems to think otherwise.

And while I’m here, David Bernstein makes an obvious, but important point about the Harvard-Yale monopoly on our national leadership.

UPDATE: Eric Turkewitz makes a far more easily overlooked, but at least equally important, point as Bernstein, noting that Kagan appears to have no record whatsoever of representing individuals in private practice, “in the trenches,” so to speak.  The lack of such a record is of a piece with the rest of the Court.

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70 thoughts on “Kagan and the Conservatives

    • @Mike Schilling, I’d be quite content with Stanford or Berkeley or UVA – not every smart and capable potential justice or President goes to one of the two most prestigious New England universities at some point.

      If experiences shape our worldview – and they do – and diversity of worldviews is a significant element of good governance – and it is – then having 9 justices and 4 consecutive Presidents with such similar educational experiences is not a good thing.

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      • @Mark Thompson, I’d add that Thurgood Marshall went to Howard, and Justice Stevens to Northwestern. Both were still intellectual giants. Where a judge/politician went to school is an element of their background, and no more; that we have apparently made attendance at one of two or three schools a prerequisite for sitting on the Supreme Court or becoming President is not healthy.

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    • @Mike Schilling, all seven? Hell no. HELL NO.

      One? Eh. It’s diversity. Might be nice to have even one Protestant on the SCotUS, given that that is as close to atheism as we’re allowed to get up there.

      Besides, maybe they’ll have a novel take on cases like Kelo or Raich.

      Lord knows, a graduate of Liberty’s philosophy is not likely to be worse on the limits of government power than the one Stevens held.

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      • One? Eh. It’s diversity.

        He’d go with the whole bloc of them Bush packed into civil service jobs at the Justice Department .

        Lord knows, a graduate of Liberty’s philosophy is not likely to be worse on the limits of government power than the one Stevens held.

        Unless you care about separation of church and state.

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        • @Mike Schilling, gotta say, I’m a little more worried about American Empire, spending being divorced from taxation, government sponsored torture/assassination, and the precedent of Wickard at this point in my day.

          The Separation of Church and State is kinda secondary. Let me know when I should start freaking out more about it than, say, the administration trying to weaken Miranda.

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          • You think that Liberty University grads would be purists on Miranda and other rights for “terrorists”? I’m afraid I don’t see Falwell as an ACLU kind of guy.

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            • @Mike Schilling, it depends on my focus.

              Am I trying to find someone freakin’ awesome? Then I’d want Janice Rogers Brown.

              Do I merely want someone who wouldn’t be worse on the expansion of Government Power than Kagan?

              I honestly doubt that someone from Liberty would be worse. (No irony, no sarcasm.)

              Let me know how your technocrats work out for you in the long run.

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    • @Mike Schilling, The best available candidate was (is) a holder of two degrees from universities in (gasp!) Texas. I entirely agree with Mark & Bernstein on this.

      Also: I love New York City. But we don’t need four out of five burroughs and also Trenton represented among the nine people sitting on the highest court in our land. Obama is now two-for two not just on women raised in the city, but on women from NYC, graduated cum laude from Princeton College and with honors from one of the two NE law schools Mark mentions.

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  1. Maybe the 17th amend wasn’t such a great idea after all. What does Larison expect the Repubs to do when they are in the minority? Shouldn’t the members of the majority party take the fall for rubber stamping the executive’s choice in this instance?

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    • @Scott, It would be nice if the Republicans at least tried to object on executive power grounds. They haven’t, and it doesn’t look like they’re expecting to seriously contest her nomination in general. This is most likely because they actually like her positions on executive power, much as they actually liked the Dick Cheney view of executive power. This does not excuse the Congressional Democrats, who will continue their well-established pattern of spinelessly acceding to the wishes of the Executive branch.

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      • they actually liked the Dick Cheney view of executive power.

        Well, exactly. I feel like I woke up on the other side of the mirror this morning, seeing, after eight years of Bush and Cheney, overweening executive power called a Democratic sin.

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        • @Mike Schilling, the problem with asking “where were you guys for the last eight years?” is that, far too often, it doesn’t have the follow-up of “yeah, let’s work together to slow down this crazy thing!” but instead “well, it’s our turn now and, anyway, you’re a hypocrite!”

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          • When it comes to kidnapping, torture, and the presumption of guilt for anyone called a terrorist, I’ve been on what I consider the said of the angels the whole time, and yes, I’m disappointed as hell that Obama hasn’t used the full extent of his powers to reverse things. But you guys, as usual, claim to dislike both parties in equal measure while straining at Democratic gnats and swallowing Republican camels.

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  2. Just to put the “no representation of little guys” remark in a bit of additional context. I think that’s pretty much been the rule, not the exception, for Supreme Ct justices. What she has had, as Dean, has been a lot of experience coming to grips with the perennial difficult question “how should we teach” folks who want to represent the little guy, referring the eternal faculty debates over how much of the school’s resources should be devoted to clinical courses, to public law, what should be included in core courses, how rich should be course steams dealing with property and local government, admin law, family law, immigration law, etc. versus corporate, tax, constitutional, etc. So I expect she’s up-to-speed on the sort of cutting issues that affect the little guy that might make their way to the Sup Ct and has had to think about some of the structural problems our courts have in delivering justice to the little guy.

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    • @nadezhda, I’m not so sure. There’s a big difference between understanding the law that affects the little guy and actually understanding how the law affects the little guy. Moreover, there’s also a massive difference between the academic understanding of law and the actual practice of law on a daily basis that gets too-easily overlooked.

      To use a personal anecdote – I have long been a civil libertarian, and my policy positions on civil liberties issues haven’t changed very much, nor has my knowledge of Constitutional case law. But I cannot say that I meaningfully understood any of the problems in our criminal justice system until I actually represented someone who had been spent a month on Riker’s Island awaiting extradition on charges that had zero evidentiary support and were completely trumped up so that her ex could get custody of the kids. Despite that, the pressure to enter a plea from the prosecutor almost proved insurmountable. Thankfully she resisted the temptation and was victorious at trial. But that didn’t change the fact she had spent a month on Riker’s Island, nor did it change the fact that she had to put her life on hold for six months until the trial, nor did it prevent me from feeling terrible when I was legally unable to assist her a few months later when the exact same charges were brought against her again a few months later, with no additional support.

      Never dealing with the law as it is actually practiced makes it too easy to forget that you’re dealing with actual people with actual hopes, dreams, lives, and interests.

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      • @Mark Thompson, Sure. No debate at all that theory and practice are quite different. I was just pointing out that she probably has been exposed to as much or more “little guy” issues (both substantive and process) as many of the folks who serve on the Sup Ct. She will have to have dealt with how to give students the “real world” experience they ought to or want to have. Structuring clinical courses, pro bono work-for-credit, etc. is a perennial source of law faculty discussion and part of a Dean’s portfolio. Is that the same as actually representing “little guys”? Of course not.

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        • @nadezhda, I gotcha. To be clear, though, Turkewitz’ complaint (and by extension, mine) is that it appears that none of the SCOTUS justices at this point have any experience directly representing anyone other than corporations, and even at that, the experience seems to be quite limited. That is actually quite remarkable when you think of it – of the current and future justices, only Kennedy has a significant amount of experience “in the trenches” representing human clients. And even that was 40 years ago. Considering the percentage of lawyers, who most directly deal with consequences of SCOTUS decisions, who work for small and medium sized law firms representing human beings, the fact that there is only one justice with a meaningful background doing exactly that is fairly troubling.

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  3. It’s not obvious that the nomination could get past a Senate filibuster, if it comes to that. I expect that there will be no filibuster, and that Kagan will be confirmed by a small margin.

    In any case, I see no basis for concluding that she is a “terrible choice.” I suppose that remark is merely a reflection of fear that Kagan will be a “liberal” activist without regard for established law. I doubt it, but we have “conservative” activists on the Court now (notably Roberts), so opposition to that trend should be hoped for from any Obama nominee.

    We cannot know how she will do as a justice, since she has no judicial experience beyond clerking for Justice Thurgood Marshall. Some justices with similar lack of judicial experience are considered among our best, beginning with John Marshall. I trust the President to choose a nominee with suitable qualifications and temperment, and will wait to see how it turns out.

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  4. Greater diversity would be better, but the short list of suitable candidates is too small. The choice was made not because the President believes that we need another justice from New York City and from an Ivy League law school, but because he believes that she was the best choice which would pass the Senate without too much difficulty. I would have preferred Diane Wood, but I don’t expect she will be nominated without a filibuster-proof majority in the Senate.

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    • @Gary A. Hill, Isn’t the fact that this exact same conclusion has been reached enough consecutive times that every single Justice is a grad of HLS or YLS demonstrative that perhaps the problem is more than just one of there being a too-short roster of viable candidates? There are plenty of left-of-center appellate judges in the federal courts, plenty more in the state supreme courts, and plenty of well-qualified left-of-center candidates in the DOJ and even, for that matter, Congress and state governments (oh, what I wouldn’t do for a Justice with a strong legislative background!). If the roster of candidates with backgrounds that do not include HLS or YLS is still unacceptably small, then I’d say that is in itself indicative of a pretty big problem.

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      • @Mark Thompson,

        I wouldn’t say it’s a very big problem. Diane Wood is from U. Texas Law and is in Chicago now. The big problem is confirmation in the Senate.

        Justice O’Conner was from Stanford Law. One of President Reagan’s few excellent appointments, I think.

        President Obama may get one more Supreme Court vacancy, in which case we may see a break from the Harvard/Yale pattern. But that should not be the primary criterion.

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        • @Gary A. Hill, I’m not saying that getting away from the Harvard-Yale axis is or ought to be the primary criterion. My point here is that we will now have 9 consecutive justices who came out of that axis, suggesting that a connection to that axis has in fact become a significant (if unspoken) criterion for appointment to the Court. My complaint is that this is an absurd criterion to use, and one that would have kept any number of fully capable – and indeed influential – jurists off the Court. There may be reasons why each particular Harvard/Yale alum was considered the best choice for the Court at the time, but at some point it becomes impossible to miss the pattern and to wonder why that pattern exists.

          This is particularly true at a time when Obama’s got 59 votes in the Senate. Are we really to expect that Wood (or any one of the myriad qualified candidates with a non-HLS/YLS background) wouldn’t have been able to garner even a single GOP vote after Sotomayor managed to get 9?

          O’Connor went to Stanford rather than Harvard or Yale, but that was also almost 30 years ago now, during which time the entire composition of the Court has completely changed over, including O’Connor herself, with every single new justice hailing from one of those two schools.

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        • @Gary A. Hill, O’Connor as an excellent appointment? First time I’ve ever heard O’Connor described as excellent; in three years of law school and afterwards, no student or professor ever hinted at such a view. Her opinions were terrible; laying out indecipherable multi-pronged tests that provided little guidance to the judges. A friend in 1L moot court was asked a question about an O’Connor opinion. His response:

          “Your honor, it’s an O’Connor opinion, so it’s not clear…”

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  5. I exchanged emails with a blogging friend of mine about the lack of academic and geographic diversity on the Court yesterday. He’s a law graduate from NYU and his take was that modern law is so complicated that a Supreme Court judge must come from a top-tier university. I countered that Stanford is ranked third by most lists I found and there is considerable diversity of location among the top 10 law schools. I haven’t heard his response yet.

    What concerns me more is the lack of geographic diversity. 8 of 9 justices (counting Kagan) from the Northeast. I wonder if this speaks more to Yale and Harvard’s admissions process or the preferences of Washington’s elites. I also see it as the more troubling aspect. Geography does matter greatly in a country this size. It’s extremely concerning to see such lack of representation on the court.

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    • @Mike at The Big Stick,

      “He’s a law graduate from NYU and his take was that modern law is so complicated that a Supreme Court judge must come from a top-tier university.”

      Wow, really?

      That’s about the dumbest line I’ve ever heard in my life. “Top-tier” university, my hind end. Granted, having a good academic understanding of the law is fairly important, but one can acquire such at any one of a number of different institutions.

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  6. This pick is just absolutely depressing. I don’t think there’s enough evidence to conclude what she’ll do on various executive power issues in & out of national security affairs, but just on her face the nominee appears grossly underqualified (though I don’t claim particular insight into the question of what qualifies SC nominees for confirmation). She oozes the worst attributes of the elite Ivy-Dem/academy-government pipeline. Generally, I don’t have a problem with the existence of that pipeline — generally I’m pro-technocracy and want my government officials educated at our best insititutions. And I’m also entirely on board with the mini-movement (convenient though it seems to be at the moment given Kagan’s obviously ineveitable nomination) in support of justices who have not spent their entire professional life on the federal bench. But in place of that, I do want them to have some type of distinctive professional experience, at least something outside of academia and purely party-driven government posts. Elena Kagan had never defended a client’s interests or appeared as an avocate in any court until shes started as Solicitor General last year. When I think of all the qualified candiates with highly distinguished academic record AS WELL AS highly distinctive professional experience that gives them a sense of how legal issues intersect with actual lives (criminal defense, local government, non-profit work, military service, etc.), I despair that people with such uninteresting, sanitized resumes are the ones that get these nods now. Let’s be honest: Elena Kagan is an academic administrator and some-time political aparatchik (and short-tenured Solicitor General with unimpressive performances by most accounts). But having done (or said) nothing much worth talking about other than graduating from the right schools and loyally serving one’s party is apparently what gets a person on the most important legal body in the world now. I’m disgusted. I expected better from Obama – and thought Sotomayor in some ways (depite the similarities here) signaled we might be getting it. I was wrong. Many things Obama has done probabky should have been the thing to really make me divest myself of my remaining illusions about him. For some reason this appears to be the thing, though. (As much as I support the checks on the executive and close examination of what’s been done to the Constitution in the War on Terror, I nevertheless acknowledge that there are real, powerful, and to some extent legitimate policy imperatives at work on the various sides of those questions. As much as I abhor the surrender of liberty for security, it is also no small thing to ask officials to check their efforts at establishing security in deference to Constitutional questions when we know that the public expects security to be a given. That’s as serious as it gets, and with stakes so high on both sides, I have sympathy for those making the decisions in most all cases. With picks like this, there is just so much less legitimate counterweight to the imperative to make truly excellent selections that reflect both talent, accomplishment, andf diversity of all kinds — including of *experience*.

    Picks like the one we see here? I just can’t stand the smell of this kind of crap, because there is no good excuse for it. He could have picked anyone, and he picked a zero. A lackey. A conventional, undistinguished careerist. Someone who adds precisely nothing to this stodgy, and increasingly rickety and indeed tarnished, institution on which we place such weight and authority. This Court needed inspired picks from Obama – picks that represent the country. This is an abdication.

    For more, see all of Paul Campos’ writing on Kagan and the nomination.

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  7. From what little I’ve heard, this commie-dike broad has more in common with the NAZI’s than the founding fathers. Oh hell, there I go mixing ideologies again.

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  8. Well, I was being snarky but since you bring it up. I see BO’s efforts more along the line of destroying or at least reducing the private sector so that gummint can be the dominant, go to, default social entity. The GOP generally speaking works to benefit (big) business …er…somewhat, and give at least some help to the little entrepeneur which is where ‘jobs’ will come from in any econ recover. BO has no inclination to provide any succor for this class of Americans.
    I suppose it possible that the TPers are going to show the GOP where the bear shits in the woods, I know Bennet quite because he wasn’t ‘conservative’ enough.
    There may be a political tsumani coming, I really hope so…maybe we can have some show trials.
    Anyway under BO’s regime were quickly moving to the point where we run out of ‘other peoples money.” If he fails bad enough, and the GOP hasn’t had it’s ‘come to Jesus’ moment, we may meet at the barricades…hope not!

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    • @Bob Cheeks, Bush made Obama inevitable.

      *THAT* is reason enough to not miss the guy.

      It’s almost enough to make you wonder what might have happened had 2000 turned out had there been 529 additional votes counted in Florida…

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      • @Jaybird,
        Doggone it, JB, that’s a good point..though a dem was going to win no matter if George Wash. had been the previous president. What only a few of us who actually looked at the wonderkid from the South Side figured out was that he was a certified card carrying commie. Mark that one down under “Stupid White People,” who want to make up for slavery, the lynchings, etc.
        I’m watching the election this fall. If ‘real’ conservatives kick the snot outta a whole bunch of commie–dems, and considering that this clown hasn’t a clue as to a econ recovery …I don’t think he wants one…than maybe he’ll be ousted in two and half more years…if not the countries toast…buy guns and ammo.

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  9. Ooops! forgot…Algore has real mental issues, JB, and I’m not being cute. I kinda feel sorry for the guy. Hey, I know he’s getting ready to dry hump the American public with his ‘green shit,’ but he’s a walking justification for birth control. One really weird dude.

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  10. I’m in the weird position of not having much of a personal stake in the Kagan nomination, that said, I actually feel bad for liberals and progressives (who’ve long been dying for a Scalia of their own. Why? I don’t know.) and instead are seeing the President replace Justice Stevens with someone who will (in key areas but not necessarily across the board) move the court rightward.

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    • @Kyle, William J. Brennan was *AWESOME*.

      Seriously, he was the bomb diggity.

      The reason they want more Scalias is that Scalia is amazingly persuasive over time. Even in his dissents where he is in the minority, he has a bunch of little nuances in his arguments that get adopted. Additionally, he’s pithy. He has a joke that goes something like this: “What’s a moderate interpretation of the Constitution? Halfway between what it says and what you wish it said?”

      Devastating! Well, Brennan was able to go toe to toe with Scalia.

      Sadly, there ain’t a Brennan on the SCotUS no more. The closest they had was Stevens and the closest next to him is probably Breyer… I have not read a whole lot of what Kagan has written and so cannot say whether she’s likely to persuade people even with her dissents (as Brennan did).

      But, you know what?

      I doubt it.

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      • @Jaybird, Brennan’s opinion in Texas v. Johnson probably could have – and should have – been on my list of influential works. I note that Scalia joined that decision. I don’t know if Brennan persuaded Scalia with his opinon (probably not), but I have a hard time thinking of an opinion written for a majority that is as passionate and beautifully written.

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          • @Jaybird, Well, he was Catholic and he did go to all the right schools. So he’d have that going for him, at least. Then again, he was also a Northeast Democrat who was nominated by a Republican in order to get swing voters to back said Republican – different times, to say the least. Oh – he was also a labor lawyer at a firm that at the time couldn’t have been overly large (Pitney Hardin is now the BigLaw firm Day Pitney, but in 1931 I’m sure it was a bit of a different story), and then a state court trial judge and a state Supreme Court judge, a resume that only Sandra Day O’Connor can approach in more recent memory. In other words….yeah, there’s no way he’d even get nominated today.

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              • @Michael Drew, Here’s why I don’t like that answer:

                The illegality of an act ought not be based on the offensitivity of the audience present.

                That’s not what “freedom of speech” means.

                Drawing a cartoon of Mohammed and drawing a cartoon of Jesus are damn near identical in content. It should not be illegal to draw a cartoon of Mohammed but legal to draw a cartoon of Jesus because Jesusians are less likely to explode in confined spaces.

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              • @Jaybird, The offensiveness of the speech act is exactly not what the answer I gave uses to judge whether the act might be subject to some conduct restrictions. The burning could be maximally offensive. What is necessary is for the burner to be reasonably expected to have been able to see that burning the flag would very likely incite onlookers to violence, to have been aware of that possbility, and to have done it anyways. That’s a restriction that would apply to any act, not just speech acts, though acts with speech content receive even more protection than pure conduct leading to incitement. The kind of thing that would reasonably lead to that expectation (or demonstration) of awareness is not that a given act might be particularly offensive to a given group, say veterans etc. That’s exactly what was litigated in Texas v. Johnson. Rather, it has to be something like the crowd literally yelling, “If you light that flag on fire we’re going to riot!” or the burner himself saying something like, “I hate America and so I’m burning this flag; lets go turn over that car over there to demonstrate our collective rage!”

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              • @Michael Drew,
                Rather, it has to be something like the crowd literally yelling, “If you light that flag on fire we’re going to riot!” or the burner himself saying something like, “I hate America and so I’m burning this flag; lets go turn over that car over there to demonstrate our collective rage!”

                In your first example here, I don’t think you’d be able to convince a court that a restriction on the speech would be acceptable, at least not outside the 9th Circuit (and arguably not even there). The reason I say this is that in that case, the restriction is not viewpoint neutral – it prefers the speech of the mob to the speech of the flag-burner. It’s also dangerous as a matter of public policy, creating a powerful incentive for parties, especially politically popular groups, to silence speech by threatening imminent violence. It’s equivalent to saying that MLB can be legally prohibited from moving the All-Star Game out of Arizona if supporters of the Arizona law threaten to burn the stadium down if the MLB makes that choice.
                Your second example would probably be an acceptable restraint because of the manner in which it creates an imminent threat of violence. The restriction would not inherently be favoring one viewpoint over another, merely prohibiting someone from ordering the imminent commission of a crime that is malum in se. Although even there, I question the value of the restriction – I would think that even without the restriction, you’ve most likely got a pretty clear case of conspiracy and/or attempt. If no one responds to the call for violence by committing some kind of overt act (even just running in the direction of the car could count), then you probably don’t have the level of imminent threat to justify the speech restriction in the first place.

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