SUICIDE BY SPEECH?

"Congress shall make no law… abridging the freedom of speech … ." 

What does that really mean? It certainly does not mean what it says. Congress makes many laws abridging the freedom of speech. Examples include pornography, incitement, true threats, espionage, libel, and many more.

Unsurprisingly, there's lots of "give" in deciding which speech is protected by the First Amendment’s "abridgment" clause, and which is not. The difference can often be a matter of life or death to 

A. Individuals, or even 

B. Our Constitutional democracy.

                                           A. 

I offer up an example of the former, to which I have earlier referred:

In the early 1990s, a group of antiabortion extremists came upon a distressingly effective means of reducing the number of abortions by reducing the number of doctors who perform them. The process was simple enough. It didn't take mob violence. All it took was an Old-West style “WANTED” poster with a photograph and geographic details of the offending physician, and a pattern soon spread across the land: a physician who was “postered” was then killed by an inspired-but-heretofore-unaffiliated person. 

Once it became known in the medical community that being postered was a sentence of death, not only postered physicians quit performing abortions, but others, fearing they were “next," did so as well. When an extreme antiabortion group in Oregon saw the success of the poster process, they decided that killing one physician at a time was not good enough and they issued a “Deadly Dozen” poster. At the top of the poster in bold 6-inch letters was the word "GUILTY." In the center was the name, photo, and home addresse of 13 abortion providers, It didn’t say “DEAD OR ALIVE” after the word “WANTED”. It didn’t have to. At the bottom of the poster was the promise, “REWARD.”

Did the deadly dozen list instill fear in the minds of doctors and nurses and other clinicians? You betcha!  Indeed the sponsors of the list admitted as much and were proud of their accomplishment.

My law firm sued the antiabortion group to stop the threats. The defense? The First Amendment! They argued the Constitution gave them the right to encourage other people to murder physicians.

The case went to trial and the jury was charged with the determination of whether the “postering" of these physicians was a “true threat" and therefore beyond First Amendment protection.

The jury said “yes,” the trial judge agreed, but a three-judge Circuit Court said otherwise in an opinion written by the soon-to-be-disgraced Alex Kosinski.  He wrote “Merely encouraging or making it more likely that others would carry out… the gruesome mission was constitutionally protected speech!” (Kosinski was later driven from the bench when it became known he was showing pornographic films to his young female clerks. The disgraced former judge is now counsel to former president Donald Trump.) (Oh yeah, an en banc court reinstated the trial verdict.(

                                             B,

The Trump era has upped the stakes. Now the question is beyond whether speech will result in the killing of a particular craft of men and women. At risk is the Constitution itself.

There is now abroad the land a group of men who call themselves Christian Nationalists, or words to that effect  They include the Proud Boys, the Oath Keepers, and scores of militias across the land. They are armed and they communicate freely (and often illegally) on social media channels. When established channels forbid their hateful and often violent rhetoric, they form new channels that effectively encourage hate speech. They used those channels to organize the "Unite the Right" march on Charlottesville, and the January 6  insurrection attack on the Capitol and they communicate messages that are encouraged, if not sponsored by Donald Trump. His open and notorious approval is manifest. Indeed, it has been raised as a defense in trials of the rioters!

The calculated nature of Trump’s approval of hate speech was established earlier this week when he publicly dined at Mar-a-Largo with Kanye West and Nicholas Fuentes. 

West has become, of late, a rabid anti-Semite who, he said, is now ready to “go to death con three with the Jewish people."  Fuentes, on the other hand, is an older hand at this. He has been blocked by numerous media for his hate speech. He is a hard-core White Christian Nationalist who has denied the Holocaust, criticized Trump for saying bad things about white supremacy, and has questioned whether Hilter's conduct toward the Jews "was a bad thing." He has basically threatened Jewish annihilation with his statement:  

"The Jews had better start being nice to people like us, because what comes of of this is going to be a lot uglier and a lot worse for them than anything that has been said on this show." 

These are the former president’s luncheon guests. In public yet. You can't make this stuff up.

Can there be any doubt that this public approval of anti-Semitic behavior encourages the spread of anti-Semitism?  Are these threats to annihilate Jews, and this talk of “death con three for Jews,”  to use the words of  Trump’s of new lawyer, “merely encouraging or making it more likely that others would carry out the gruesome mission and therefore constitutionally protected speech?”

Or was Justice Robert Jackson correct when he wrote a half-century ago:

"No serious outbreak of mob violence, race rioting, lynching, or public disorder is likely to get going without the help of some speechmaking.”

It was Jackson, in the Terminiello case who nailed it: 

“In the long run, maintenance of free speech will be more endangered if the population can have no protection from the abuses which lead to violence.”

 Jackson, a former Nuremberg prosecutor, made his fears clear:

 "There are many appeals these days to liberty, often by those who are working for an opportunity to taunt democracy with its stupidity in furnishing them the weapons to destroy it,  as did Goebbels when he said 'When democracy granted Democratic methods for us, [Nazi seizure of power] was bound to happen in a democratic system. However, we national socialists never asserted that we represented a democratic point of view, but we have declared openly that we used democratic methods only in order to gain the power and that, after assuming the power, we would deny to our adversaries without any consideration the means which were granted to us in times of our opposition.'”

Translation: Trump, the Oath Keepers, the Proud Boys, West, Fuentas, and other would-be authoritarians have their own version of Democracy which does not include allowing its use to oust them if they gain power.

Jackson's views noted above come from his dissent in a 5 to 4 decision in which the majority overturned sanctions against a suspended Catholic priest, sponsored by Gerald L. K. Smith. The priest whipped up a mob into rock-throwing violence by calling all non-Christians “scum”, saw “danger from Jews of all stripes” and demanded they “should go back to where they came from." His audience responded “Jews are all killers, murderers – if we don't kill them first they will kill us."."

Jackson's response to that set of facts was one that could be written today following the Trump-inspired Capitol insurrection: 

"The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom it will convert the constitutional Bill of Rights into a suicide pact." 

Seventy years later, I suggest we stand on the threshold of that choice.

A bientot.

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HYPOTHETICALLY SPEAKING

A Town Board, after contentious discussion, votes 4-3 to build a multi-million-dollar waste disposal facility adjacent to the Jones family home. Jones hires a lawyer, who files a petition with the Town Board urging reconsideration and reversal of that decision on a number of grounds, principally that the project violates existing zoning and environmental laws.  

While the matter is under consideration, Jones learns that the company that was awarded the contract to construct and run the waste facility is owned by a limited liability corporation owned by one Eliza Smith, who is the spouse of Harold Smith, one of the town Councilman who voted for the project. 

Jones again petitions the Town Board for reconsideration, and this time demands that Smith abstain from the voting. Smith refuses to recuse. Jones goes to court and seeks an injunction barring Smith from voting on the project because he has a clear conflict of interest and his participation is barred by an unambiguous Town statute.

 

There is little doubt, in my humble opinion at least, that an unbiased judge would grant the injunction and forbid Smith from voting on the project.

Now comes the fun part. Most of the balance of this piece is not hypothetical. 

Title 28 of the United States Code, sections 455(a), and 455(b)(5) provide as follows:

"(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b)He shall also disqualify himself in the following circumstances:

.......

(5)He or his spouse ……

Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;"

Now it is hardly a secret that Mr. Justice Clarence Thomas is married to Ms. Ginni Thomas who is a well-known, active election-denier. In particular, in the State of Arizona, Ginni Thomas emailed 29 Arizona legislators urging them to choose new electors – i.e. different from the ones chosen by the voters. One of the new "fake electors" was to be Ms. Kelly Ward, Chair of the Arizona Republican Committee, and also an active election-denier.

Metadata from Kelly Ward's phone was subpoenaed by the Jan6 committee.  There is no doubt that Ms.Ward's sympathies on the subject of election denial were similar if not identical to those of Ginny Thomas. 

Ms. Ward challenged her subpoena on the grounds that it was a violation of her First Amendment rights. She lost in the District Court, lost in the Circuit Court, and sought appellate review by the Supreme Court.

Mr. Justice Thomas, in an indefensible violation of federal law, failed to recuse himself and voted to reverse the lower court decisions and to support Ward's effort to block the subpoena. (There is even the possibility that among the metadata on Ms. Ward's phone is one or more communications with Ginni Thomas!) Justice Thomas nevertheless refused to recuse. He not only participated in Ward's appeal, but voted to reverse the lower courts and quash the subpoena. Happily he was in a minority of two (yup, you guessed it, Alito).

And this was not the first time that Mr. Justice Thomas was involved in the defense of Trump. He voted to block the release of Trump documents from the national archives to the January committee. On that case, he was the single Justice to vote to sustain Trump's claim.

(And let's not forget Eastman's suggestion on behalf of Trump, that somehow they get a motion before Thomas who would sit on it and delay the matter until after January 6, which would help the success of the fake elector scam.)

So what's the remedy? Over and over again, in congressional testimony and otherwise, we hear the Attorney General of the United States and members of Congress, and our judiciary repeat the mantra "No man is above the law." The phrase is almost always raised these days in connection with Donald Trump. But doesn't it also apply to Clarence Thomas? Clearly he is not above the law either. The statute requiring his recusal specifically refers to "any justice ... of the United States." 

So what is the remedy to block the plainly illegal activity of the man who apparently believes his robe makes him an exception to the rule of law?

So far, no remedy has been apparent. Journalists, editorial writers, politicians have all been crying in their beer, but nobody does anything about it!

So here's my plan:

The very next time Thomas fails to recuse himself when required to do so by 28 USC 455, the Attorney General, or the Chair of the appropriate congressional committee, or the District Attorney of Georgia, --whomever the prosecutor may be -- should seek an injunction barring Thomas's participation in the matter. 

Would a District Judge have the cajones to enjoin a Supreme Court Justice? Surely, there are some, if not many, who would do so in such a clear-cut case. The same question would apply to the Circuit Court that would undoubtedly be involved immediately following any District Court decision on the matter. And then there is the substantial likelihood that whatever the Circuit Court decides, the losing party will seek review by the Supreme Court of the United States. 

And now the fat will be in the fire with the Justices of the United States Supreme Court  facing the possibility of the national – indeed international – disgrace of, one way or another, granting one of their number the singular right to be immune from federal law, or finding some way to duck the question. Or enjoining one of their members from participating in a case before the Court!

I know, I know, the likelihood of this pattern developing is extraordinarily slim but it sure is fun to think about it, non?

A bientot.

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DO IT. NOW!

The recent election result accomplished several things:

One. The crazies are not in charge of the legislative branch. Marjorie Taylor Greene will not rule Congress. God did not choose Douglas Mastriano to be the Governor of Pennsylvania (even though DeSantis may believe that he was "Chosen”), the majority of the country rejects Alito's personal religious approach to Constitutional rights, and, perhaps best of all, election deniers took a beating at the polls.

Two. Perhaps most important of all, Trump took a beating when he was outed for encouraging the January 6 insurrection riot, for stealing classified and nonclassified government records, for signing willful lies to court petitions, for trying to corrupt election officials, and for participating in the creation of false electors. He responded with outrage to the charges. He insisted they were a hoax and this was a witch hunt. He expected not only his base, but a majority of the country to buy what he had to sell. But he failed. He lost the last election by 7 million votes, and if he ran today I believe the number would be double that. He has inspired Democrats, Independents, and blocks in the Republican party to make known their disrespect of him. And as each day passes, more of the Great Grifter’s misconduct becomes known: excessive hotel bills paid to property he owns, illegal interference with the IRS, and my guess is there is more to come.

Aside from the fact that his core of haters and election deniers will not govern, I suggest that his barely veiled threats that the country “will not stand for" his indictment is total bullshit.

Readers of mine know that I have no doubts that Trump is guilty of a mélange of felonies and that the only question remaining was whether Garland concluded that prosecuting a losing presidential candidate made us look like a Banana Republic. My own view has been consistently to the contrary: a failure to prosecute this crook would make us look weak, insincere, and like a country being led by politicians who are afraid of their shadow and have abandoned the rule of law.

Would an indictment yield harsh words from the crazies? Will there be threats of violence? For sure. Will those threats be legal? Many of them will not be. It's a crime to make a threat using the means of interstate commerce. ‘’True threats’’ are not protected by the First Amendment and the crazies who say otherwise are either ignorant or sophisticated liars. 

Does our government have the guts, the wherewithal, the determination to prosecute the crazies? I suggest it does, and if Merrick Garland needs more help, he should get it. If it takes thousands of prosecutors to enforce the law and protect our Constitution, then so be it. We have done that and a lot more in the past and if we must do it again then we must do it again.

I'm glad the Great Grifter is going to announce his candidacy tomorrow or the next day. The more he speaks, the more headlines he produces, the more attention will be paid to his criminality and the greater will be the demand on the Department of Justice to do justice.

Lock him up. Now.

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