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naraburns  nihil supernum  1yr ago (text post)   34976 thread views

Culture War Roundup for the week of March 6, 2023

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So, it does not apply only to disruption of trials.

That is what I said. It is an extremely broad law that was originally created with the ostensible purpose of stopping stuff like destruction of evidence or intimidation of witnesses, and was previously only applied in that way, but that going by the text can be used to apply severe criminal charges to broad categories of protest activities. Now, if it was applied equally I might be at least somewhat sympathetic to the idea of cracking down on protest in general and pushing all political questions to be settled in the voting booth. But what makes it worse is that it is clearly being applied selectively based on the viewpoint of the protesters, a novel application of a law created because those charging them find the political cause of "Pence shouldn't certify the election results due to supposed evidence of fraud" particularly objectionable.

the problem with that is that under the textualist method of interpreting legislation, legislative history and Congressional intent are largely irrelevant

Your own link admits how absurdly broad the text is:

must be limited for it would otherwise produce "an absurd result that the Congress could not have intended in enacting the statute"). For instance, a person outside the Capitol building protesting legislation while it is under consideration by a congressional committee is surely attempting to "influence" the proceeding, but no one would seriously contend that such an act violates section 1512(c)(2). The same is true of a citizen who emails her congresswoman to urge her to vote against a judicial nominee. The court therefore appreciates the dangers that an unrestrained reading of section 1512(c)(2) would cause.

So how exactly do they distinguish between political activity prohibited by the text of the law that "nobody would seriously contend" actually violates it, and political activity prohibited by the text of the law that gets you years in prison? Well, they think this protest was bad:

Defendants are accused of having, individually and collectively, acted with the purpose "to stop, delay, and hinder the Certification of the Electoral College vote." Indictment ¶ 38. Wearing paramilitary gear, and with some moving in a "stack" formation, id. ¶ 39h–i, Defendants "forcibly storm[ed]" past exterior barricades and law enforcement, id. ¶ 39j, to carry out a planned "operation to interfere with the Certification of the Electoral College vote," id. ¶ 39a. Once inside the Capitol building, some made their way to the Senate wing of the Capitol and "push[ed] against a line of riot police officers guarding the hallway connecting the Rotunda to the Senate," retreating only after officers deployed a chemical spray. Id. ¶¶ 151–154. Others moved toward the House of Representatives. Id. ¶ 156. Some entered with bear spray and assaulted police officers. Id. ¶¶ 164–168. Their alleged conduct was no mere political protest or trespass.

Notice how, for instance, other protesters committing violence renders it "no mere political protest" and serves as justification for applying the law to nonviolent protesters like Chansley. That's sure not the standard that was applied to BLM protesters, including the ones who disrupted "official proceedings" by doing stuff like repeatedly setting that Portland courthouse on fire. But of course the primary determination of how the apply such a broad law isn't even with the court deciding which protests they like and which they don't, it's with those deciding to charge people with it in the first place. Code Pink loved to "obstruct, influence, or impede" Congress, but obviously nobody ever charged them under this law. In fact after writing that sentence I searched and here's an article from 2 weeks ago:

Code Pink protesters disrupt inaugural House China committee hearing

Two Code Pink activists attempted to disrupt the inaugural hearing of a House select committee on the Chinese Communist Party and were escorted out by security officials.

During testimony by former White House National Security Adviser H.R. McMaster, a woman from the pro-China leftist group held up a sign stating, “China is not our enemy,” and began shouting.

The capability of motivated reasoning to come up with reasons why such an overbroad law should apply to your political enemies is more than sufficient. The law should either not exist or at least not be interpreted as applying to cases anything close to this.

I took your claim to be that the law did not apply to the Jan 6 events. But if your claim is instead that it is overbroad, that is a different question. Maybe it is. But note that other courts, in completely different contexts, have rejected that precise argument re this precise law. To quote the case I linked:

The Second Circuit rejected a similar argument in United States v. Thompson , 76 F.3d 442 (2d. Cir. 1996). There, the defendant was convicted of witness tampering in violation of 1512(b)(1), and on appeal argued that " § 1512 violated his First Amendment rights by broadly ‘proscrib[ing] persuasion.’ " Id. at 452. The court rejected that argument, reasoning that "[a] prohibition against corrupt acts is clearly limited to ... constitutionally unprotected and purportedly illicit activity." Id. at 452 (internal quotation marks omitted). "By targeting only such persuasion as is ‘corrupt[ ],’ § 1512(b) does not proscribe lawful or constitutionally protected speech and is not overbroad." Id. ; accord United States v. Shotts , 145 F. 3d 1289, 1300 (11th Cir. 1998) (citing Thompson ); United States v. Brenson , 104 F.3d 1267, 1280 n.6 (11th Cir. 1997) ("A prohibition against corrupt acts does not proscribe constitutionally protected speech and is clearly limited to unprotected activity.").

The Court then observed that the indictment alleged acts intended to disrupt the proceeding, not mere speech.

Moreover:

we have vigorously enforced the requirement that a statute's overbreadth be substantial, not only in an absolute sense, but also relative to the statute's plainly legitimate sweep. See Board of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 485, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989); Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). Invalidation for overbreadth is "`"strong medicine"'" that is not to be "casually employed." Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U.S. 32, 39, 120 S.Ct. 483, 145 L.Ed.2d 451 (1999) (quoting Ferber, 458 U.S., at 769, 102 S.Ct. 3348).

United States v. Williams, 553 US 285, 293 (2008).

Also, "[f]acial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute," Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). Construing the law to not apply to speech, even loud disruptive speech such as the Code Pink one, goes a long way toward addressing potential overbreadth issues.

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