What Three Things Matter Most in the Trump Mar-a-Lago Case? Intent, Intent, Intent

September 4, 2022 // 8 Comments »

The three things which matter most in the Trump Mar-a-Lago case are intent, intent, and intent. Trump’s intent — not so much what he did with classified and/or national security documents but what he intended to happen based on his actions — will decide his innocence or guilt if the case ever comes to court. The documents themselves matter much less, and are almost a red herring.

Wholly separate from January 6 and any other legal action against Trump, the Mar-a-Lago search warrant specifies three sections of law as justification, meaning any prosecution that comes out of the documents found in the search will likely be under one or more of these, a roadmap to the possible prosecution. On the face it seems Trump is pretty close to guilty, assuming at least some of the documents found were marked as classified and his arguments that as president he declassified them are not accepted. You can see an example of the hathotic glee over this here.

But there is one more step, often overlooked in Twitteranalysis, to prove, and that is intent. The concept of intent is planted throughout American law and says in many cases (to include incitement, most tax evasion, and sedition) that you not only need to have committed some act like stirring up a crowd to violence, you had to have done it with a specific goal in mind, such as stirring them up to violence. It is intent which separates the what from the why. It’s the difference between a mistake, error, misstatement, and an actual crime. The action itself is often easy to prove, while the thought pattern, what was in someone’s head, the mental objective behind an action, much less so. Based on the laws cited on the search warrant, it is what matters most in Mar-a-Lago.

The three laws mentioned in the Mar-a-Lago search warrant all specifically require proving intent — Trump’s mental objective in taking the classified document  — or its equivalent:

— 18 U.S.C. §§ 793, “Gathering, transmitting or losing defense information” says (emphasis added) “Whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation…” Intent is mentioned repeatedly throughout the law, sometimes restated as purpose, reason,  and the like. This law is part of the infamous Espionage Act of 1917. Parts of the Espionage Act also includes a gross negligence standard, meaning a prosecutor does not have to prove specific intent in all cases.

— 18 U.S.C. §§ 2071, “Concealment, removal, or mutilation generally of an record…” says that the act must be (emphasis added) “willful and unlawful,” a standard likely of general intent. This statute also states anyone who violates it should be disqualified from holding public office, but while the issue would likely get litigated in court, legal scholars broadly believe it couldn’t be used to stop Trump from running for president again in 2024. Only Article II of the Constitution can prescribe the requirements to run for president.

— 18 U.S.C. §§ 1519, The “anti-shredding provision” imposes criminal penalties on anyone who (emphasis added) “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede or obstruct an investigation.”

Intent as we’re (and Trump) is concerned about almost always means specific intent, as opposed to general intent. General intent means the prosecution must prove only that the accused meant to do an act prohibited by law. Whether the defendant intended the act’s result is irrelevant. Specific intent means the accused intentionally committed an act and intended to cause a particular result, a wrongful purpose, when committing that act (U.S. v. Blair.) Merely knowing a result is likely isn’t the same as specifically intending to bring it about. (Thornton v. State.) Note that none of the laws mentioned as possible violations require the documents in question to be classified, though it would be hard to imagine prosecutors could prove something not classified could rise to the level of “injuring the United States.”

In Trump’s case, based on what we know publicly, intent might play out as follows. On the first charge, the Espionage Act, prosecutors would need to show he kept classified and/or other national security information at Mar-a-Lago with the intent to cause injury to the United States. Similar for the third charge, where prosecutors would need to show he kept classified information and/or other national security info at Mar-a-Lago with the intent to impede or obstruct an investigation. The second charge seems more geared toward general intent, that Trump kept classified and/or other national security info at Mar-a-Lago knowing it was wrong without prescribing an outcome (actus reus), such as injury to the U.S. or obstructing an investigation. All easy to say, but hard to prove in court.

Much of this is over-looked by the Twitteranalysists, who are like Southern Baptists and Satan, assuming the worst always about Trump’s intent to the point where they need not comment. For example, one Blue Check wrote “Will Donald Trump finally face something approximating justice for his five decades or more of apparent and aggressive lawlessness, culminating in a criminal presidency and an attempted coup, with the possibility of treason and criminal espionage? Will the American people finally be rid of this meddlesome would be tyrant-king with millions of followers, leader of a neofascist movement that is literally threatening to uproot and destroy American democracy?”

Hyperbole aside, the critical question returns to whether or not prosecutors could prove specific intent on Trump’s part for the more serious charges, one and three above. Proving a state of guilty mind — mens rea — would be the crux of any actual prosecution based on the Mar-a-Lago documents. What was Trump thinking at the time, in other words, did he have specific intent to injure the United States (charge one) or to obstruct some investigation (charge three)? Without knowing the exact nature of the documents this is a tough task but even with the documents on display in front of us proving to a court’s satisfaction what Trump wanted to do by keeping the documents would require coworkers and colleagues to testify to what Trump himself had said at the time, and that is unlikely to happen. It is thus unlikely based on what we know at present that Trump would go to jail for any of this.

Take for example the charges of tax evasion now levied again the Trump Organization (i.e., not Trump personally and not part of the Mar-a-Lago case.) Trump Organization CFO Allen Weisselberg as part of a plea deal will agree to testify against the Organization but not Trump himself as to why the Organization paid certain compensation in the form of things like school tuitions, cars, and the like, all outside the tax system. It will be a bad day for the Organization but loyal to the end, Weisselberg will not testify as to his boss’ mens rea. It is equally unclear who would be both competent and willing to do so against President of the United States Trump. Blue Check enthusiasm aside, he won’t go to jail over this.

The final questions are probably the most important: DOJ knows what the law says. If knowing the chances of a serious conviction are slight, why would the Justice Department take the Mar-a-Lago case to court? If knowing the chances for a serious conviction are slight, why would the FBI execute a high-profile search warrant in the first place? To gather evidence unlikely ever to be used? No one is above the law, but that includes politics not trumping clean jurisprudence as well. The justice system cannot replace the electoral system in choosing the next president.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Trump

Trump (and Georgia) On My Mind

May 14, 2022 // 2 Comments »

One of my kids is studying law, and I’ve read a bit over her shoulder as she prepped for exams. Two critical things stand out: unlike in literature, words in the law have very specific meanings (lie, fraud, possess, assault), and intent matters quite a bit. The latter is very important, because people say things all the time they do not mean, such as “If Joe in Sales misses that deadline I’m gonna kill someone.” No one’s life is actually in danger, we all understand. Same for all those neighbors who were going to but never did move to Costa Rica if Trump was elected.

Misunderstanding words as moving from the general to the very specific when you pull them out of a conversation and try to bring them to court, and determining intent based on what you “believe,” are really at the root of the ever-growing string of failed legal actions against Trump (there are some 19 still pending.) We have, and this is just hitting the highlights, all of Russiagate, the Mueller Report, Impeachment I, Impeachment II, Stormy Daniels, failed accusations of real estate valuation fraud in New York and most recently, a grand jury seated to look into election fraud in Georgia.

For example, in Impeachment I, the Ukraine caper, the entire brouhaha hinged on Donald Trump’s own words in the transcript of his call with the Ukrainian president. But did they mean Trump was demanding foreign interference in the 2020 election? Or was he asking an ally to run down unethical actions by Joe Biden as a public service before he might become president? What was Trump’s intention when he said “A lot of people want to find out about that so whatever you can do with the attorney general would be great.” Later in the call Trump suggested some aid to Ukraine might be withheld, though not in specific reference to any investigation into Biden.

The people who brought the impeachment proceedings decided all that constituted an illegal solicitation of a foreign in-kind contribution to Trump’s re-election campaign, maybe even extortion. The allegation was referred to the Justice Department, which declined charges. Many Democrats though that unfair, failing to see the lack of anything coming of it (i.e., no investigation by Ukraine), the lack of anything withheld (the aid was eventually delivered) and overall the lack of intent to commit a crime by Trump. The legal definition tests for words like solicit and extort were not met and Justice correctly dumped the case and there was no conviction in the Senate.

Same story in New York, where the facts seemed to support Trump valued real estate at a lower price for tax purposes and a higher price when used as loan collateral. It’s called valuation and is legally done all the time. But some decided saying one thing to one person and another to another person to gain something was “fraud,” and everyone pursuing the case forgot that they also had to prove intent, that Trump lied with the intention to commit a crime and gain by ill begotten methods. The case rightfully collapsed.

Yep, same with the Stormy Daniels saga, where the facts seemed to be Trump, via Michael Cohen, paid money to Stormy to keep quiet about their affair. Sleazy enough, but paying someone as part of a non-disclosure agreement is not illegal. It would be a crime if the money was paid by Trump with the intent of influencing an election, which he suggested was not true, the cash-for-silence was maybe to protect his marriage. Campaign finance laws require proof a person was willfully violating the law. Prosecutors would have to demonstrate that willingness by Trump alongside showing his principal goal was to influence the election. If this kind of case would have ever reached court, Trump would have simply denied intent.

Another example can be found in the incitement allegations surrounding the speech Trump made just before his supporters entered the Capitol building January 6. A democracy can’t lock up everyone who stirs up a crowd. Speech which inspires, motivates, or warms the blood cannot be illegal as it is the very stuff of democracy. Trump thought the election was unfair and had a right to say so. Brandenburg v. Ohio refined the modern standard to 1) the speech explicitly or implicitly encourages the use of violence or lawless action; 2) the speaker intends their speech will result in the use of violence or lawless action, and 3) imminent violence or lawless action is the likely result of the speech. Brandenburg is the Supreme Court’s gold standard on what government may do about speech that seeks to incite others to lawlessness.

The key is always intent. You have to prove, not just speculate, the speaker wanted to cause violence. Listeners’ reaction to speech is not alone a basis for taking action against a speaker. You’d need to prove Trump wanted the crowd to attack the Capitol and set out to find the words to make that happen. It ain’t gonna fly for the January 6 Committee.

Which brings us to Georgia, where the NYT asks “Will Trump Face a Legal Reckoning in Georgia?”  On January 2, 2020, facing an election loss, Trump called Georgia’s Secretary of State to demand he “find 11,780 votes,”  one more than Joe Biden’s tally. Did Trump encourage the secretary to commit election fraud? That prosecution will fail, as did all of the ones above, for the same two reasons: words are not solely what they seem, and intent is hard to prove.

For example, to the Democratic lay person “find” means commit election fraud to come up with votes. But well before anything goes to court, it will be made clear that “find” in this context can also mean, in just one example, recount all legal ballots to see if a mistake can be found which legitimately sends more votes to Trump. The other issue is again intent; to prove solicitation of election fraud, Georgia law requires a person intentionally “solicits, requests, commands, importunes or otherwise attempts to cause” another person to engage in election fraud. Trump and his associates need only to maintain they meant “find” as in recount, not as in cheat. Case closed.

In seeing the same mistakes made over and over, you’d start to think maybe the Democrats need some better lawyers. But don’t worry. Democratic lawyers know just as well as Republican lawyers none of these cases ever had a chance in a real court. Their purpose was purely political, to manufacture some headlines, to influence voters, to create the impression Trump has to be guilty of something if only he could be stopped from wriggling away. The goal is to convince voters to ignore the rule of law and take matters into their own hands in 2024 to stop Trump.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Trump

Hating the January 6 “Sedition Hunters”

January 23, 2022 // 15 Comments »

I hate these people. I hate them for who they are and for what they are doing and most of all I hate them for the larger thing they are a part of.

The people I hate call themselves sedition hunters. They give themselves war names glorified by a liberal press, names like Deep State Dogs and Capitol Terrorists Exposers. What these people do, as a sort of Orwellian hobby, is identify people who participated in the January 6 Capitol riot. They spend their days slithering around the Internet looking for evidence that can put a name to a press photo and then turn what they find over to the FBI in hopes the Feds will play Sturmtruppen to their Gestapo and kick some doors down. They turn neighbors in to law enforcement as a hobby.

One specific goal they have is to find higher quality images of a suspect that the FBI or their more tech-savvy fellow fascists can run against facial recognition tools. They spend hours on PimEyes, a facial recognition website, copying and pasting photos from CNN freeze frames and Facebook profiles. And unlike the FBI, whose use of facial recognition is at least nominally controlled by law, these amateurs are free to use and misuse the tech on behalf of the FBI without legal or moral fetter.

Here’s how one hagiographic journalist described the sedition hunters: “There are archivists with the encyclopedic knowledge of the timeline, locations and key players. There are hashtaggers who generate catchy, memorable nicknames [example: NaziGrayHat, AuntRageFace, MAGAGuy] to help the community track the actions of suspects still at large. There are the computer whizzes who create slick websites that let you explore evidence in a user-friendly format. There are the diplomats who serve as liaisons between break off groups in the larger sedition hunters network.”

One of those slick websites, January 6 Evidence, offers a minute-by-minute timeline linking photos and videos, overlaid with a geolocator map for suspects. You can filter for AntiAbortionTrumpers and CapitolFireExtinguishers, or chose to target only Proud Boys or Oath Keepers. The Persons of Interest page displays almost 1,800 faces, photos we assume were taken from the press coverage but who knows, of those ID’ed and those pending ID, updated with links for people busted by the Feds. One of the page developers, K2theSky, runs a companion Twitter account all about tracking down the January 6 participants that plays out like a serial killer’s bulletin board. You can almost hear her greasy sounds of self-pleasure in the background as a crusader tags another victim. It goes well beyond the “revenge of the nerds” meme the MSM employs to humanize these people.

The web site is an extraordinary obsession. While you were walking the dog, or volunteering at the food bank, these people did all this work on their own, for free. It takes a lot of hate to inspire thousands of painstaking, detail-oriented hours of free work over a period of months. Imagine that much hate channeled by a charismatic leader. It would be a triumph of will.

Putting the events of January 6 in perspective is important to understanding my hate for these people. January 6 just was not anything significant, despite all the heat and noise. The most perfect way to know that is to look at the convictions resulting out of all this Scooby “sleuthing” and FBI work. To date 702 people have been arrested. Of the completed cases, the majority have been plead guilty to things like trespassing, unlawful entry, and picketing in a Federal building, the kind of things which follow a rowdy Ohio State-Michigan game. There have been no convictions for treason, sedition, incitement or insurrection (though Stewart Rhodes, the Oath Keepers founder, has been charged with conspiracy related to sedition.) Things are so far from reality that one rioter just skipped prison time because the judge noted she came to the Capitol in a tutu and not tactical gear.

The Capitol riots were goonish, embarrassing, but in the end about as historically meaningful as a floor brawl in the Taiwanese legislature. For it to be a coup, insurrection, etc., it would have needed a path toward accomplishing a change of government. There never was any. Joe Biden was always going to be president just like the election said should happen. All the mob accomplished was a meaningless few hours’ delay in a largely ceremonial christening by the House. Trump’s actions vacillated between bizarre and shameful, but hardly Weimar material. As the fat kid in Jojo Rabbit said, “Not a good time for Nazis.”

We must also dismiss the notion that the sedition hunters are some sort of modern day crime fighting superheroes. They are politically motivated vigilantes. They don’t hunt pedophiles or murders, they hunt Trump supporters over misdemeanor trespassing cases. Their actions are not aimed at justice but rather toward contributing to a propaganda meme that says what happened on January 6 was the most significant events of their meaningless lives. They do not want to solve crimes; they want to ruin the lives of people pictured by the media.

In the aftermath of the Rittenhouse trial it has become common to rhetorically ask “What would have happened if Kyle Rittenhouse was black?” So let us try the same here. Imagine a group of online sleuths dedicating themselves to identifying the young black men who busted windows and burned stores during BLM riots. Imagine people devoting their lives to creating online resources with real-life consequences for Americans not charged with any crime, feeding everything from rumors to facial recognition results to law enforcement so they could kick down some uptown door and drag a 24-year-old black kid to jail.

I hate the sedition hunters because they do not realize they are pawns in a larger game. Democrats and mainstream media are trying to sell the events of January 6 to frightened Americans as a new 9/11. This is in service to two goals: electing a Democrat in 2024, and using the tools of law enforcement against Republican supporters. You, too, should hate that.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Trump

Two Truths, a Question and the Problem with Incitement

January 14, 2022 // 9 Comments »

 
One truth is the 2020 campaign never really ended. On paper Joe Biden became president and Donald Trump became a real estate developer again, but in reality Biden is simply a placeholder and Trump an active candidate for the presidency in 2024.

A second truth is in the law, unlike in propaganda and journalism as it is practiced today, words have very precise and specific meanings. Terms like assault, for example are well-defined by decades of case law. You can write gobbledy guck about things like a “verbal microaggressive assault” but that’s just for the rubes; don’t expect the case to make it to court. The same for terms like incitement, hate speech, and conspiracy. Never mind terrorism, treason or sedition.

The question is: after five years of failed, false accusations against Trump (Russiagate on down), how valid of an election strategy is it to twist vernacular definitions into quasi-legal ones? After so many instances of crying wolf (walls closing in, tick tock, etc,) will doing it all again over the events of January 6 actually win votes for the Democratic candidate, or will voters finally realize the Emperor’s arguments about Trump have no clothing and stay home?

Absent some Pearl Harbor-scale event, it is difficult to see what the Dems can run on in 2024. It is unlikely the Democrats will emerge from the 2022 midterms with a new majority, meaning all of their domestic agenda promises are shot. They are likely to lose the battle over Roe, and accomplish little on immigration other than the half-arsed decision to stop enforcing immigration law on the southern border. Even if Mother Nature casts a vote and cleans up Covid somehow, it will be difficult for Democrats to take much credit. They have no clear plan for unfutzing the economy and any progress made will be seen as catch-up at best. Tearing down statues and appointing transpeople only goes so far.

Their whole strategy for 2024 is to make people believe Trump tried to overthrow the Constitution on January 6, and having failed sulk away to embrace the electoral process and just run for president again. It’s a tough ask. Propaganda/journalism have failed to sway many minds. To succeed it’s going to require something real, an actual court finding Trump actually guilty of an actual crime that meets the expectations set after flinging around words like treason and sedition. Some goofy tax problem in a New York state court or empty process crimes like “conspiracy to…” which dragged the Russiagate mess, will not be enough.

The issue? In the law, unlike in propaganda and journalism as it is practiced today, words have very precise and specific meanings. Problem One is there was no coup. Presided over by Trump non-accomplice Mike Pence, Congress did its job. Biden took office. Trump went home. The rioters went home. After a year of efforts none of the 700 some prosecutions have been for anything close to sedition or treason, mostly just fluffy versions of trespassing. None claimed they acted on orders from Trump, Don Jr. or the Pillow Guy. Despite all the over-blown Powerpoints and texts, there was no realistic path toward a coup taking place. That is a very high bar to climb over and prove something serious like treason. You need a fire to prove arson.

So the Dems and media are left with some lawyering to do, in their minds the equivalent of taking down Al Capone on tax violations. The problem is Capone really did fail to pay taxes. Trump’s actions were instead legal under the First Amendment. The smoking gun can’t have been loaded with blanks.

So the focus ends up on the one thing Trump actually did do on January 6, speak at the Stop the Steal rally. Dems argue his words constitute incitement. You can reread them, but it would be more productive to spend some time learning what actually is and is not incitement.

Most of the rest of the guff around Trump and January 6 is even emptier of substance, things like “giving aid or comfort” to those committing sedition, conspiracy to forcibly “prevent, hinder or delay the execution of any law of the United States, or corruptly impede any official proceeding. The Dems focus in this sphere is on what Trump did not do to stop the riot, particularly his taking three hours to issue a video request for the rioters to go home. The over-arching problem is that crimes generally require you to do something. Not doing things, or not doing them fast enough to the Dems satisfaction, is hardly a chargeable crime.

The clearest sign there is nothing real behind the exaggerated claims surrounding January 6 is that after an impeachment, a calendar year passing, and 700 some low-level prosecutions, nothing much has been proven. As with Russiagate, the more time that passes with nothing but media-generated smoke the less likely there is anything more. Even die-hard Trump Derangement Syndrome sufferers like Laurence Tribe are reduced to weakly calling for more robust investigations instead of beating the drum for execution. Time for the left to lump Merrick Garland in with Robert Mueller as a great failure.

There is certainly room to judge Trump’s actions on January 6. But that judgement must come from the voters, not a kangaroo court, if you want to talk about preserving the rule of law.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Trump

Incitement is the New Terrorism

February 15, 2021 // 2 Comments »

You can only make up your own definition of “incitement” in the movies and at presidential impeachment trials. Otherwise the actual law is going to have to do.

The picture is becoming clearer now: 1/6 will be sold to frightened Americans as a new 9/11, the prime mover for a whole new range of “crimes.” Incitement will become this generation’s version of “material support to terrorism,” meaning the complex legal definition will be massaged in the name of safety so that it will become a not-real crime based on the flexibility of a word that will mean whatever the Dems/MSM/FBI want it to mean in a particular scenario.

So the kid in his bedroom chatting online will be talking to a Fed pretending to be a white supremacist instead of pretending to be ISIS. The kid’s arrest for incitement (those social media messages supposedly about white supremacy) will be played across the news and, like post-9/11, add fuel to the fires calling for more censorship, more surveillance, more arrests. It is literally the exact playbook from 2001.

Only better. The upgrade to the old playbook is that incitement scales well. So instead of just being pointed at naive kids online, it can be a death ray aimed at a conservative writer, a Congressperson, anyone with a platform. It is a way to eliminate an opinion, take out a rival, even impeach a president. That is why incitement is not aimed at stopping violence but alongside big tech censorship, a tool aimed at thought, at unpopular ideologies, a tool to crush free speech. All in the name of preserving democracy.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

Posted in Trump

Bad Arguments the Left is Using to Destroy Conservative Speech

January 14, 2021 // 1 Comment »

 
Some Bad Arguments the Left is Using to Destroy Conservative Speech

The graced haiku of the First Amendment was defeated in this current age not by jack booted thugs but by Terms of Service.

It wasn’t supposed to be this way. From 1984 through every dystopian movie, as well as the sordid history of real dictatorships past, the loss of free speech was supposed to come from the top down. A powerful man crushes the press, brown shirts take over TV stations, that sort of thing. Nobody foresaw the loss of free speech in a once great democracy would come – by popular demand – from many of The People themselves.

But that is what is happening in these extraordinary times here in Post-Constitutional America. Before this, the other great losses of rights once confirmed in blood followed dark tradition: after killing four Americans by drone, Barack Obama’s attorney general claimed the president’s personal deliberation constituted enough due process to satisfy the Fifth Amendment. Exaggerated fear of terrorists saw the Fourth Amendment rights to privacy obliterated by the NSA and welcomed by the frightened masses.

What Americans once saw as our highest values became luxuries that in a time of fear, first 9/11, then Trump, the country believed it could ill afford. Justice, fairness, and free speech became a risk, their indulgence a weakness.

Among the rights lost, free speech is arguably the most dear. Without free speech people stop thinking, losing all but a narrowing band of ideas. Open discussion, debate, and argument are the core of democracy, good ideas defeating bad ones in the marketplace of the mind. Fascism seeks to close off all ideas except its own, falsely labeling dissent as disloyal, insubordinate, seditious, insurrectionist, and ultimately unlawful.

Any discussion of free speech must acknowledge despicable people and their ideas have always existed. These people will use any freedom they have to promote the worst of ideas. Yet it is equally important to remind how at different times in our history speaking out against slavery, against war, against or for one politician or another, have all been seen as despicable. Restrictions on free speech have been used to ban great literature, books about women’s reproductive health, and photos once deemed “pornographic” now displayed as art. Someone will always find an idea or word offensive. Allowing that person to judge for all of us has never proven to be on the right side of history. The times when America stepped back from free speech – the WWI era Sedition Act, the McCarthy Years – are not the years we are proud of.

Trumpism, neo-Nazis, alt-right, white supremacists, QAnon, Pepe, and the racists is sadly nothing new. Indeed many of those groups in different forms have been around for decades. What is new is Leftists are aggressively embracing many of the same tools once used to try and stop the anti-war movement, feminists, and other progressive groups in the past. Those tools which directly offend the Bill of Rights include violence, suppression, censorship, and twisty quasi-legal reasoning about incitement and sedition. In addition are the tools of the bully, including misuse of the No Fly List to ban pro-Trump travelers for their political beliefs, “canceling” by mustered mobs, and blacklists to bar people from earning a living due to their politics.

But something else new turns up the dial: technology, coupled with the metastisization of new global media unabashedly willing to take advantage of not being under the control of the 1A. Combine that technological reach with liberal autocratic zeal all hidden behind the justification that Because Trump, Nazis, white supremacists, etc. the ends justifies the means and you have trouble. The justification is Everything Is Different and the old rules don’t apply. The democratic ideal of free speech is now a threat to democracy.

The literal first shot was fired, er, thrown, at the Trump inaugural. Richard Spencer was explaining live on camera the meaning of Pepe the Frog, a silly cartoon figure somehow adopted as a mascot by the movement Spencer promoted. An anonymous black-clad antifa protester ran into the scene and sucker punched Spencer. His free speech was ended by that act of violence.

There followed tens of thousands of comments on the YouTube videos of the attack. The standard response was “I don’t condone violence but…” and then go on to condone violence if it was directed against “Nazis.” It only got worse. In 2021 the Leftists of social media cheered the shooting death of unarmed Trump supporter Ashli Babbitt at the hands of the Capitol Police. “She earned that bullet…” read one typical remark. “Don’t forget that she was participating in a domestic terrorist attack!”

Another popular sentiment which echoed from 2017 into 2021 is to claim violence is justified as a leftist response to hateful speech by the right, and that if perhaps more people had punched Hitler in the early days the world would be a better place. More than a few people also suggest punching someone in the head is in fact a form of protected free speech itself, and others seem to think whatever they label as “hate speech” is a crime. Others used phrases along the lines of “the end justifies the means” and “by any means necessary.” It was if half the nation had simultaneously flunked AP Government.

Following the Spencer attack, similar violence landed at Middlebury College, then at a rally where one protester who displayed a Confederate flag was attacked, and at the University of California Berkeley (the university was ironically home to the Vietnam War protest-era Free Speech Movement.) Institutions, including Berkeley, Ohio State, Penn State, and New York University, canceled, postponed, or scheduled into dead zones speeches by conservative speakers, citing public safety concerns.

The undergirding philosophy was in place. The stage was set for a series of arguments to sate the desire to restrict speech. Let’s look at some, and why they do or not hold up.

The First Amendment Only Applies to Government

The First Amendment only applies to government, and so corporations are free to censor, restrict or shut down speech altogether.

Short Answer: True. The interplay between the 1A and corporations like Facebook is the most significant challenge to free speech in our lifetimes. It can only be resolved by a landmark Supreme Court challenge.

Until very recently no entity existed that could censor at scale other than the government. The arrival of global technology controlled by mega-corporations like Twitter, Facebook, Google, and Amazon brought first the ability the control speech and soon after the willingness to do so. The rules are their rules, so we see the permanently banning the president of the United States from tweeting to his 88 million followers while allowing the Iranian and Chinese governments to speak freely to those same people. At the same time Trump was suspended from social media for inciting violence Twitter allowed the hashtag #HangMikePence to trend. Violence in one location is a threat to democracy while similar violence is valorized if under a BLM flag.

The ability of a handful of people nobody voted for to control the mass of public discourse has never been more clear. It represents a stunning centralization of power. It is this power which negates the argument of “why not start your own web forum.” Someone did – Parler – until Amazon withdrew its server support, and Apple and Google banned the app, and silenced them. The same thing happened to The Daily Stormer, driven offline through a coordinated effort by multiple tech companies, and 8Chan, deplatformed by Cloudflare (Parler is suing Amazon under antitrust laws to regain its platform, and may seek a new provider in the interim.)

Try an experiment. Google “Peter Van Buren” with the quotes. Most of you will see on the first page of results articles I wrote four years ago for Leftist outlets like The Nation and Salon. Almost none of you will see the scores of weekly columns I wrote for The American Conservative over the past four years. Google buries them, like they never even happened. Try the same on the tiny DuckDuckGo search engine and the conservative articles appear.

Currently safe from the 1A as private companies, and with the legal shield of Section 230 of the Communications Decency Act, there is nothing to stop Twitter and the others even as new technologies create new opportunities to control speech. The election of 2020, when they hid the story of Hunter Biden’s laptop from voters, and the election’s aftermath, when they banned the president and other conservative voices, was their coming-of-age moment, the proof of concept for media giants. Many on the Left cheered the companies’ actions. No surprise. Presciently, Senator Chris Murphy, seeing the power available, had earlier demanded social media censor even more aggressively for the “survival of our democracy.”

While there are few things to currently prevent corporate censorship, whether for their own purposes or as a proxy for the Democratic Party as Murphy demands, there are some counter-veiling legal currents which recognize the need to extend the 1A.

One victory confirmed the status of social media, when the Supreme Court struck down a law prohibiting sex offenders from using Facebook. Justice Kennedy wrote in Packingham v North Carolina social media is now part of “the modern public square” so denying access violated the First Amendment. The Court concluded in a separate case “public access cable TV channels constituted a public forum, notwithstanding that they were operated by a private company.” Recognizing new media, even if administered by private companies, as the modern equivalent of the public square is an important step.

The next step is recognizing the civic responsibility of those providing public forums as part of the process of chipping away at the public-private divide shielding the big media companies.

The Supreme Court recognizes two categories of public fora: traditional and limited public forums. Traditional public forums are places like streets, sidewalks, and parks. Limited public forums are not traditionally public, but ones the government has purposefully opened to some segment of the public for “expressive activity.” By inviting the public to Facebook for comment, the government transforms a private place into a limited public forum which should be covered by the 1A. The Court only requires a “forum” for 1A purposes “to be private property dedicated to public use” or when the government “retains substantial control over the private property.” Like how the government cannot censor public library books even if the library is located in a private storefront.

In other words, by providing a public forum Facebook, et al, assume a new role. It seems reasonable that some protections for the public speech there be offered. They may not apply to Aunt Lisa’s cat pictures but should apply to her posting in favor of some local legislation on the ballot.

Bottom Line: Pretending a corporation with the reach to influence elections through the forum it provides is just another company that sells stuff is to pretend the role of unfettered debate in a free society is outdated. There are legal arguments to extend limited 1A protections to social media. Section 230 could be amended. However, given Democrats disproportionately benefit from corporate censorship and current Democratic control of the government, no legislative solution appears likely.

Hope rests instead with the Supreme Court expanding the 1A to social media, as it did when it grew the 1A to cover all levels of government, down to the hometown mayor, even though the Constitution specifically only mentions Congress. The Court has long acknowledged the flexibility of the 1A in general, expanding it over the years to acts of “speech” as disparate as nudity and advertising. But don’t expect much change any time soon. Landmark decisions on speech, like those on other civil rights, tend to be more evolutionary than revolutionary.

Free Speech May Provoke Violence (A Clear and Present Danger)

Some claim conservative speakers who use anti-LGBT or racist slurs to fire up their audiences can be banned or shut down. They say such speech is the equivalent of yelling Fire! in a crowded movie theater.

Short Answer: The standards for shutting down speech are purposefully restrictive, and well-codified. Most pundits and politicians come nowhere close. This excuse is over-used.

The Fire! line from Supreme Court decision Schenck v. United States is often cited as justification for limiting free speech. Here’s what Justice Oliver Wendell Holmes wrote:

“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. 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.”

The full decision says the First Amendment doesn’t protect speech that meets three conditions: 1) the speech must be demonstrably false; 2) it must be likely to cause real harm, not just offense or hurt feelings, and 3) must do so immediately. Words in these decisions have hyper-specific legal meanings, often defined through multiple cases, which is why simply Googling a term and passing judgment on its vernacular via Twitter usually is wrong.

This interpretation of the First Amendment imposed restrictions on speech. But Schenck was what jurists call bad law, in that it sought to use the Espionage Act against a Socialist pamphleteer opposing WWI to stop free speech, not protect it. The case was eventually overturned, and in truth Holmes’ statement was better understood not as a 21st century test but to simply mean that while the First Amendment is not absolute, restrictions on speech should be narrow and limited.

It was the later case of Brandenburg v. Ohio (below) that refined the modern standard for restricting speech past Fire! But Holmes’ “fire in a crowded theater” line sticks around as a kind of inaccurate shorthand.

Bottom Line: The Supreme Court set a very high bar against restricting speech based on the idea that what was being said leading to harm, then in a later case moved the bar even higher. Offense or general threats alone are insufficient to justify silencing someone. People who cite “fire in a crowded theater” miss the fact that a more nuanced version of restrictions followed which currently controls speech.

Speech Can or Should Be Restricted Based on Content (Hate Speech)

There are no laws against “hate speech.” A speaker can insult people by their race, sexual orientation or religious beliefs. Often words are carefully chosen to inspire and promote hate or to appeal to crude and base instincts. Indeed, that is their point.

Short Answer: You cannot restrict hate speech. Hate speech per se does not exist in American law. Free speech means just that, with carefully limited restrictions sketched out by the Court.

Brandenburg v. Ohio (Clarence Brandenburg was a KKK leader in Ohio who used the N-word with malice) precludes hate speech from being sanctioned as incitement to violence unless (1) the speech explicitly or implicitly encouraged the use of violence or lawless action; (2) the speaker intends their speech will result in the use of violence or lawless action, and (3) the imminent use of violence or lawless action is the likely result of the speech.

A hostile reaction of a crowd does not automatically transform protected speech into incitement. Listeners’ reaction to speech is thus not alone a basis for regulation, or for taking an enforcement action against a speaker. The speaker had to clearly want to, and succeed in, causing some specific violent act to take place. Intent in particular is purposely hard to prove.

The Brandenburg test is the Supreme Court’s final statement to date on what government may do about inflammatory speech that seeks to incite others to lawless action. It was intended to resolve the debate between those who urge greater control of speech and those who favor as much speech as possible before relying on the marketplace of ideas to sort things out. Yet corporate censors have simply created their own definition of incitement, with Twitter suppressing the speech of 70,000 users simply for retweeting material with “the potential to lead to offline harm” under its Orwellian named Civic Integrity Policy.

A second type of speech is categorically excluded from First Amendment protection and often erroneously labeled hate speech: “fighting words.” This category of unprotected speech encompasses words that when spoken aloud instantly “inflict injury or tend to incite an immediate breach of the peace… [and is] “likely to provoke the average person to retaliation.” Offensive statements made generally to a crowd are not excluded from First Amendment protection; the insult or offense must be directed specifically at an individual.

The law is similar for sedition. Sedition broadly refers to seeking to overthrow the U.S. government by force. It is intimately tied to the concept of free speech in that any true attempt at overthrow will need to be preceded by persuasion, rabble rousing, and the stirring up of crowds. The line between criticizing the government and organizing for it to be overthrown is a critical juncture in a democracy.

Current law requires the government prove someone conspired to use force. Simply advocating broadly for the use of violence is not the same thing as violence and in most cases is protected as free speech. For example, suggesting the need for revolution “by any means necessary” is unlikely to be seen as conspiracy to overthrow the government by force. But actively planning such an action (distributing guns, working out the logistics, actively opposing lawful authority, etc.) could be considered sedition.

All of this may soon change, however. Joe Biden and other Leftist thinkers have been active considering new laws against “domestic terrorism” which will likely draw from and enlarge the current definition of sedition, so expect to hear more about all this. The new laws may seek to define beliefs such as “whites are a superior race” not as bad science or an unsavory opinion but as an actual threat, an illegal thought. Proposals include prohibiting people with such beliefs from joining the military or law enforcement.

The upshot is apart from some very narrow exceptions the obligation to free speech exists independent of the content of that speech. This is one of the most fundamental precepts of free speech in a democracy. There is no need for protection for saying things people agree with, things that are not challenging or debatable or offensive. Free speech is not needed for the weather and sports parts of the news. Instead, free speech is there to allow for the most rude, offensive, hateful stuff someone can imagine. The true tests for a democracy come at the edges, not in the middle.

That is why it should make a college age ACLU donor proud to know her $25 contribution helps both BLM and Nazis to say what they think, but it apparently does not. Some 69 percent of American college students believe hate speech (defined as “language intentionally offensive to certain groups”) should be (unconstitutionally) banned.

A professor at New York University wrote plainly, albeit as if he was unaware of the Constitution, “Freedom of speech means balancing the inherent value of a given view with the obligation to ensure that other members of a given community can participate in discourse as fully recognized members of that community. Free-speech protections — not only but especially in universities, which aim to educate students in how to belong to various communities — should not mean that someone’s humanity, or their right to participate in political speech as political agents, can be freely attacked, demeaned or questioned… [I]nvoking a pure model of free speech that has never existed, the dangers to our democracy are clear and present.”

The good people at NYU who believe in censoring speech have some opposition. Justice Oliver Wendell Holmes declared unpopular ideas should have their opportunity to compete in the “marketplace of ideas,” understanding free speech is not an ends but a means in a democracy. Justice Louis Brandeis held people must discuss and criticize ideas, that free speech is not only an abstract virtue but also a key element that lies at the heart of a democratic society. Even the fact that speech is likely to result in “violence or in destruction of property is not enough to justify its suppression.” Brandeis concluded “the deterrents ordinarily to be applied to prevent” violence and disruption “are education and punishment for violations of the law, not abridgment of free speech.”

Bottom Line: There is no justification for restricting speech so that people are not offended. Speech may offend, indeed that may be its point, but bad ideas are then defeated by better ideas. It’s the law.

What’s Said May Provoke Violence (Public Safety)

The idea a university or other venue cannot assure a speaker’s safety, or that the speaker’s presence may provoke violent protests, or that the institution just doesn’t want to go to the trouble or expense of protecting a controversial speaker has become a go-to justification for canceling or restricting speech. Berkeley cited this in canceling and then de-platforming (rescheduling her when most students would not be on campus) Ann Coulter, and New York University cited the same justification for canceling a conservative speaker.

Short Answer: Canceling a speaker to protect them or public safety is the absolute last resort, and some risk to safety is part of the cost to a free society for unfettered speech.

The most glaring misuse of this argument is when such a justification is applied only toward one strain of speech, say unilaterally against conservative speakers and not against others. The conclusion can only be danger comes from unpopular ideas based solely on their being presented on a left-leaning campus. The argument of restricting a speaker “for their own safety” who is otherwise willing to take on certain risks to make their voice heard can thus be applied in a biased manner. Restricting speech for safety needs to be content neutral.

Public safety has been long (mis)-used to silence otherwise protected speech. Such thinking has been used to deny permits for civil rights marches, with law enforcement saying they could not protect the black protesters from the KKK. Both sides in the abortion debate have used this argument as well outside clinics.

While institutions do have an obligation to public safety, that obligation must be balanced against the public’s greater right to engage with free speech. The answer is rarely to ban speech outright simply to maintain order.

One landmark case from 2015 provides some of the clearest guidance yet. The case involved a group called the Bible Believers who used crude language (“Turn or Burn”) at an LGBT gathering. The Court held:

“When a peaceful speaker, whose message is constitutionally protected, is confronted by a hostile crowd, the state may not silence the speaker as an expedient alternative to containing or snuffing out the lawless behavior of the rioting individuals. Nor can an officer sit idly on the sidelines — watching as the crowd imposes, through violence, a tyrannical majoritarian rule — only later to claim that the speaker’s removal was necessary for his or her own protection. Uncontrolled official suppression of the privilege [of free speech] cannot be made a substitute for the duty to maintain order in connection with the exercise of that right.”

The understanding that law enforcement, or any institution, can turn first to shutting down speech that requires physical protection, has failed the courts’ tests in cases as diverse as Occupy to a Christian group bringing a pig’s head to a Muslim Arts festival. The court has long recognized content-based regulation of speech in a public forum is permissible only when the regulation “is narrowly drawn to achieve that end.”

Bottom Line: An institution cannot cite avoiding public disruption as the initial or sole reason to restrict speech. The problems of having an unpopular person speak are outweighed by the obligation to protect free speech. Maintenance of the peace should not be achieved at the expense of the free speech.

Free Speech May Be Challenged by the Heckler’s Veto

Another misargument is the Heckler’s Veto is in itself protected speech. Some on the Left feel while someone may have a right to speak, someone else has the right to shout them down and prevent them from being heard.

Short answer: Free speech is not intended to mean whomever can literally “speak” the loudest. The natural end of such thinking is mob rule, online or off.

Legitimate ways exist to challenge speakers, including engaging them or ignoring them entirely. In contrast, using a Heckler’s Veto to keep unpopular speakers from expressing their views not only stifles a particular idea, but threatens to chill public discourse generally by discouraging others with controversial ideas from sharing them. Who wants to stand up only to be shouted down by a mob, online (for example, via hacking or denial of service attackers) or offline? Protesters cannot unduly interfere with communication between a speaker and an audience. The Supreme Court concluded the government’s responsibility in these circumstances is to control those who threaten or act out disruption, rather than to sacrifice the speaker’s First Amendment rights.

The most insidious use of the Heckler’s Veto is to have audience members create a disruptive situation that compels law enforcement to shut down a speaker for them, abusing their own freedom of speech to get the government to shut down someone else’s.

Bottom Line: Balancing the rights of the speaker, those who wish to hear them, and those who wish to protest is complicated. But simply shutting down one party entirely, or allowing one party to block the rights of the others, is illegal.

It is nearly professional suicide today to defend rude or racist speech on principle, that the right to speak exists almost fully independent of what one says. It is easy in divided post-Trump America to claim the struggle against fascism (racism, misogyny, white supremacy, etc.) overrules the old norms.

But imagine your views, which today match @jack and Zuck’s, change. Imagine Zuck finds religion and uses all of his resources to ban legal abortion. Consider a change of technology which allows a Russian or Chinese company to replace Google in dictating what you can read. Instead of the outright glee the Left showed over the end of Parler and the misuse of the already evil No Fly List against Trump supporters in DC imagine the same used against something you personally believe in. Imagine the criminalization of certain thoughts and beliefs.

There may be some hope. The American Civil Liberties Union warned the suspension of Trump’s social media accounts revealed “unchecked power.” The ACLU said the decision could set a precedent for big tech companies to silence less privileged voices if they chose. Once a leading voice for unfettered speech, the ACLU started applying a “woke” political litmus test to its chosen fights during the Trump years. It seems the organization finally figured out that censoring speech anywhere, even with Trump, is a threat to speech everywhere.

Censorship is inherently wrong. People demand it when it supports their point of view (anything to dump Trump) but can’t seem to understand it will never stop there. As one former ACLU director explained “Speech restrictions are like poison gas. They seem like they’re a great weapon when you’ve got your target in sight. But then the wind shifts.”

Free speech protection covers all the things people want to say, from the furthest left to the furthest right. It’s messy as hell, and it is our essential defense against fascism and control, whether from the left or the right, from the government or from corporate actors.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

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