SUICIDE BY CONSTITUTION

 

In 1949, the head of the Ku Klux Klan sent a defrocked priest to Chicago to make a speech. There were 800 adherents in the auditorium and thousands on the outside protesting his talk. He spoke about the evil being done to this country by Jews, Eleanor Roosevelt, and her deceased husband.  As he urged deportation of the “kikes and niggers,” the crowd outside became more incensed and the speaker poured more gasoline on the flames.The crowd on the inside urged “kill the Jews.” In what the police called a “riot” by a “surging howling mob,” doors and windows were broken but no one was seriously injured. 

 

The defrocked priest was arrested on a charge of “breach of the peace” and was convicted by the local state court. His sentence was a fine of $100. He appealed all the up to the Supreme Court of Illinois and lost.  

 

The conviction was reversed by a 5-4 vote in the U.S. Supreme Court. Justice Black wrote for the majority. His view was that the free exchange of opposing views was protected by the First Amendment even if it causes “unrest.” 

 

Justice Jackson, in his dissent, likened the majority to a man “walking into a well while looking at the stars.” He concluded with this oft-quoted notion: 

 

“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.” 

 

The current Supreme Court doctrines on the subject of free speech versus threats and incitement has much in common with a bucket of eels. It is slippery, unmanageable, and in need of dramatic curative attention.

 

In 1969, Clarence Brandenburg, a KKK leader in Ohio, made speeches attacking “Niggers” and “Jews”, upbraided the government for suppressing the “Caucasian race”, and called for the deportation of Blacks to Africa and Jews to Israel. He also announced plans for a March on Congress on July 4.  He was prosecuted and convicted of “criminal syndicalism,” and sentenced to one to 10 years in prison. That conviction was affirmed all the way up to the Supreme Court of Ohio. 

 

 But his conviction was overturned by the Supreme Court of the United States, in a ruling that remains the prevailing law to this day. The court held that to overcome the defendant's free-speech rights, the prosecutor would need to prove two things: i) the defendant's speech was directed to inciting or producing imminent lawless action and ii) is likely to incite or produce such action. 

 

Don't the pre-insurrection statements of Donald Trump, Rudy Giuliani and others meet those legal requirements? 

 

Here is another pathway to freedom for the bad guys: 

In 1995, my law firm and I were involved in a federal civil case in Oregon. We represented Planned Parenthood and other health providers who were suing a group of extremist anti-abortion activists. We asserted that the defendants’ conduct threatened the lives of our clients. Just as it is illegal to threaten the life of the President of the United States, it is illegal to threaten or intimidate a health provider who is performing abortion services to women who request that service. 

 

 But these defendants did not say exactly “I am going to kill you.” They were a bit more subtle than that. They and their colleagues posted so-called “WANTED” posters of abortion providers. Each time a poster was published, the physician was killed. The defendants not only continued to publish posters, but they also published the home address of the physicians and their families. There was direct evidence at the trial that physicians gave up providing abortion services because they feared for their lives as a result of this poster campaign. 

 

At the trial, the judge charged the jury that they had the responsibility to determine whether this conduct was a “true threat,” and therefore not protected by the First Amendment.  The jury, which included at least two people who were in general opposed to abortion, said, “Yes, this is a true threat.” 

 

But a unanimous three-judge Circuit Court reversed. In his opinion for the tribunal, Judge Kozinski (yup, the jurist who was later disgraced and forced to resign from the bench after it was revealed that he enjoyed watching porno films with his young female law clerks) noted that the defendants did not say they would personally kill physicians, they just encouraged others to do so. Kozinski opined that: 

 

“Merely encouraging or making it more likely that others would carry out…the gruesome mission was constitutionally protected speech.” 

 

That decision was reversed by an en banc Ninth Circuit Court by a vote of 6-5, (two of the dissenters had been on the Circuit Court panel who joined with the Kozinski opinion.) The Supremes denied cert. What would today’s Court do? 

 

Now let’s look at U.S. v Hunt, a criminal case recently brought in the Eastern District of New York. Mr. Hunt, along with so many others, was active on what has become known as “social media.”  In December, he posted the following message on one of his Facebook accounts: 

 

“Trump, we want actual revenge on Democrats. Meaning, we want you to hold a public execution of Pelosi AOC Schumer etc. And if you don’t do it, the citizenry will. We’re not voting in another rigged election. Start up the firing squads, mow down these Commies, and let’s take America back!” 

 

Later that same day he posted this message on Facebook: 

 

Fuck the lockdown po-lice! Yeah, run these pigs over! Anyone enforcing this lockdown mask vaccine bullshit deserves nothing less than a bullet in their fucking head! Including cops! If you are going to shoot someone tho, go after a high-value target like Pelosi Schumer or AOC. They really need to be put down. These Commies will see death before they see us surrender! USA!!” 

 

Two days after the Capitol riot, Hunt posted a video entitled “KILL YOUR SENATORS” that included the summary “SLAUGHTER THEM ALL.” In the video, Hunt says 

 

“We need to go back to the US Capitol when all of the Senators and a lot of the Representatives are back there and this time we have to show up with our guns. And we need to slaughter these motherfuckers… Our government at this point is basically a handful of traitors… So what you need to do is take up arms, get to DC, probably the inauguration… So-called inauguration of this motherfucking communist Joe Biden… That’s probably the best time to do this, get your guns show up to DC, and literally just spray these motherfuckers… Like, that’s the only option… They’re gonna come after us,  they’re gonna kill us so we have to kill them first… So get your guns. show up to DC, put some bullets in their fucking heads. If anybody has a gun, give it to me, I’ll go there myself and shoot them and kill them… We have to take out the Senators and then replace them with actual patriots… This is a ZOG government [Zionist Occupied Government]… That is basically all I have to say, but take up arms against them.” 

 

A few days later, in responding to a social media post of what appears to be former national security advisor Michael Flynn who had called on supporters of President Trump to protest on January 6, and who spoke of a “plan,” Hunt responded  

 

“trust the plan bullshit. Let’s go. January 20. Bring your guns.”  

 

It’s not difficult to foresee the basic tenets of Hunt’s defense: his lawyer is sure to argue that, 

 

1. It was not “likely” that imminent lawless action would result” from Hunt’s rant,[nothing happened on January 20], and therefore, under Brandenburg, Hunt was legally exercising his First Amendment rights. Besides, he really didn’t mean the things he said, so he lacked the subjective intent to follow through, no matter what it looks like. 
   

 

And, 

 

ii) With one minor hyperbolic exception, Hunt was not personally “threatening” the government representatives, he was just "encouraging others to carry out the gruesome mission.” Like five of eleven circuit judges in the Ninth Circuit, an appellate court might agree, and hold that this was not a “true threat” and therefore these remarks were within Hunt’s free-speech rights. 

 

 

 

The current state of incitement and threat law in this country is a mess. Urging a rioting mob to “Kill all the Jews” is not truthful speech designed to lead a democracy to the correct result. Neither is a call for an insurrection that would, by force, prevent the legislature from performing its Constitutional responsibilities. 

 

 A Court holding that protects incitement and threats would risk a severe impairment of what the Founders crafted in 1787. This is a time to make sensible, practical rulings about the effect of speech on our democracy. And you can’t do that from the bottom of a well.

 

A bientot. 

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A more detailed description of the Oregon anti-abortion trial is contained in my memoir, “The Client Decides,” available on Kindle and at Amazon.