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PaperclipPerfector  11mo ago (text post)   27236 thread views

Culture War Roundup for the week of December 11, 2023

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Trump did not incite a riot in any way, shape, or form. There is simply no reasonable line you can draw between Trump's statements (which, among other things, were not made at the site of the riot) and the riot. Not by the Brandenburg standard, and not by any standard which has been applied to any politician since Brandenburg.

I realize you're not American and may not be familiar with American freedom of speech traditions and jurisprudence, but there simply isn't a serious question here, and anyone who IS familiar with such traditions and jurisprudence knows it.

Boy it sure would be embarrassing if there was very recent and highly publicised American jurisprudence on this very topic that you were unaware of when you wrote that.

The Court concludes that Trump acted with the specific intent to incite political violence and direct it at the Capitol with the purpose of disrupting the electoral certification. Trump cultivated a culture that embraced political violence through his consistent endorsement of the same. He responded to growing threats of violence and intimidation in the lead-up to the certification by amplifying his false claims of election fraud. He convened a large crowd on the date of the certification in Washington, D.C., focused them on the certification process, told them their country was being stolen from them, called for strength and action, and directed them to the Capitol where the certification was about to take place. 294. When the violence began, he took no effective action, disregarded repeated calls to intervene, and pressured colleagues to delay the certification until roughly three hours had passed, at which point he called for dispersal, but not without praising the mob and again endorsing the use of political violence. The evidence shows that Trump not only knew about the potential for violence, but that he actively promoted it and, on January 6, 2021, incited it. His inaction during the violence and his later endorsement of the violence corroborates the evidence that his intent was to incite violence on January 6, 2021 based on his conduct leading up to and on January 6, 2021. The Court therefore holds that the first Brandenburg factor has been established. 94 295. Regarding the second Brandenburg factor, the Court finds that the language Trump used throughout January 6, 2021 was likely to incite imminent violence. The language Trump employed must be understood within the context of his promotion and endorsement of political violence as well as within the context of the circumstances as they existed in the winter of 2020, when calls for violence and threats relating to the 2020 election were escalating. For years, Trump had embraced the virtue and necessity of political violence; for months, Trump and others had been falsely claiming that the 2020 election had been flagrantly rigged, that the country was being “stolen,” and that something needed to be done. 296. Knowing of the potential for violence, and having actively primed the anger of his extremist supporters, Trump called for strength and action on January 6, 2021, posturing the rightful certification of President Biden’s electoral victory as “the most corrupt election in the history, maybe of the world” and as a “matter of national security,” telling his supporters that they were allowed to go by “very different rules” and that if they didn’t “fight like hell, [they’re] not going to have a country anymore.” Such incendiary rhetoric, issued by a speaker who routinely embraced political violence and had inflamed the anger of his supporters leading up to the certification, was likely to incite imminent lawlessness and disorder. The Court, therefore, finds that the second Brandenburg factor has been met. 297. Trump has, throughout this litigation, pointed to instances of Democratic lawmakers and leaders using similarly strong, martial language, such as calling on supporters to “fight” and “fight like hell.” The Court acknowledges the prevalence of 95 martial language in the political arena; indeed, the word “campaign” itself has a military history. See, e.g., Claiborne Hardware Co., 458 U.S. at 928 (“Strong an effective extemporaneous rhetoric cannot be nicely channeled into purely dulcet phrases.”). This argument, however, ignores both the significant history of Trump’s relationship with political violence and the noted escalation in Trump’s rhetoric in the lead up to, and on, January 6, 2021. It further disregards the distinct atmosphere of threats and calls for violence existing around the 2020 election and its legitimacy. When interpreting Trump’s language, the Court must consider not only the content of his speech, but the form and context as well. See Id. at 929 (noting that, if there had been “other evidence” of Evers’ “authorization of wrongful conduct,” the references to “discipline” in his speeches could be used to corroborate that evidence). 298. Consequently, the Court finds that Petitioners have established that Trump engaged in an insurrection on January 6, 2021 through incitement, and that the First Amendment does not protect Trump’s speech.

But what would I know, I'm from another country.

  • -33

The state district court is plainly full of shit, and is itself going up against all that First Amendment jurisprudence I have mentioned. She either has serious Trump Derangement Syndrome, or is deliberately making a wrong decision to harm her political opponents. It is erroneous to consider "the history of Trump's relationship with political violence and the noted escalation in Trump's rhetoric", even if it would actually be damning to do so (it is not); to see that, we only need look at Brandenburg, which concerned a literal Ku Klux Klan leader (Evers). The Court's use of the dicta regarding Evers is in fact backwards; IF there had been evidence of Evers' wrongful conduct, his use of the word "discipline" could corrobate it. Here the Court attempts to make the "context" of Trump's language not corroboration, but the key piece of evidence. That is not supported even by that dicta.

Also, of course, that's Trump's case itself. If you want to assert that what is being done to Trump is fair, it is not convincing to cite decisions made in this case; you need to cite precedent.

I’m not convinced by the court’s reasoning.

First of all, I don’t think it’s well established that anyone at the rally expected a riot. They expected a protest certainly, but I’m not sure they expected the full force of the crowd trying to breech the Capitol. Exhibit A in my view is that speakers at the event — Josh Hawley and Ted Cruz specifically— spoke at the event and then went to the Capitol to debate certification. If there were reason to suspect a riot, then why would they want to be anywhere near the Capitol when the crowds arrived? If republicans literally believed that the 1/6 rally was going to be a coup attempt, why were they so open about funding people going? If the orders to use political violence were so clear, why is it that after they managed to get into the Capitol, they weren’t doing violence or even real property damage. In fact I’ve seen more property damage done in videos of people in restaurants being charged extra for dipping sauce than happened in the Capitol.

I think there were some elements influenced by Q who wanted to overthrow the election. But the presence of a tiny minority of people who choose to riot doesn’t mean much when it comes to whether or not the leaders and speakers intended a riot.

First of all, I don’t think it’s well established that anyone at the rally expected a riot. They expected a protest certainly, but I’m not sure they expected the full force of the crowd trying to breech the Capitol.

Of course not. Up until then, conventional wisdom was that the left riots, not the right, particularly not the mainstream right (which the crowd mostly was -- aside from some of the actual rioters, some of whom weren't even on the right!). There'd been violence at Trump rallies, but all of the form "Lefties attempt to disrupt rally, Trumpists treat them roughly". Even Charlottesville required the powers that be literally cause the violence by first canceling the legal assembly, then forcing one group through the counterprotestors.

But the presence of a tiny minority of people who choose to riot doesn’t mean much when it comes to whether or not the leaders and speakers intended a riot.

Alternatively, if a riot after a politician speaks on a topic is strong evidence of incitement to riot, there are a lot of BLM riot-promoters that should be rotting in prison for an extended stretch. I wouldn't necessarily have any problem with that, I do think many of these speakers encouraged riots and caused billions of dollars in damage across the country, costing dozens of people their lives directly, and many, many more through riot-enforced depolicing policies. The promotion of BLM was a "threat to our democracy". If nothing that any politician egging on rioters did in 2020 qualifies as causing a riot, then Trump certainly does not qualify either.

Well, sure, if they’re guilty of promoting a riot, then they’re guilty of that. But they’d have to be actively trying to convince people to riot, which at least for the actual Elipse speech (which would be the most relevant here) I just don’t see anything that someone reading the speech cold (with no knowledge of what happened afterwards) would see Trump giving marching orders to have people break into the capitol. In fact, if there’s no break-in nobody would have thought much about it. The reasoning thusly seems to be working backwards— there was a riot, and pretty soon after Trump gave a speech; therefore Trump incited the riots.

I guess that means you're expecting a reversal on appeal then?

No, it's not appealable because the decision was for Trump. It's just dicta, to be cited by other anti-Trump courts so they can pretend that what they're doing isn't unprecedented.

Trump appealed it though.

that's the cheekiness of the opinion. how or why would trump appeal a decision that went in his favour even if the opinion derided him? the original petitions have filed an appeal but i'm not sure if the higher court will just address whether the 14th amendment applies to Trump or whether he engaged in insurrection or not. presumably, if the higher court did find the 14th amendment applied it would eventually have to also make a finding on the free speech issue if Trump pushed it but i'm not sure if this would be done at the same time or not.

it would eventually have to also make a finding on the free speech issue

Baude's original law review article advocating disqualifying Trump points out the 14th amendment is also part of the Constitution, so the 1st amendment doesn't automatically apply the way it would to a normal criminal law. Under the normal rules for resolving conflicts between two laws of equal authority, the 14th overrules the 1st, both as the more specific provision and as the after-enacted provision.

So it is entirely possible that Trump is disqualified for inciting an insurrection, but is still protected by the 1st amendment from criminal prosecution for inciting a riot.

I’m sorry but this is just absolute horse shit.

First, it is true that generally speaking later in time or the specific controls BUT great pains are taken to read the rules as not conflicting where possible.

Second, constitutional law is a different matter from statutory law. The constitution is small. The USC is massive. It is likely that in the latter there will be truly irreconcilable differences. But the idea that in a relatively small legal document the latter in time drafters would silently abrogate literally the seminal amendment in American constitutional history is laughable.

So no, we need to read the 1st and the 14th in unison; not to create conflict. That is, if speech isn’t strong to be criminal it sure isn’t an insurrection (especially since the latter is graver compared to most speech crimes).

Baude beclowned himself. Funny enough he is also losing on the officer argument. Baude is now a laughing stock.

There is nothing in the Fourteenth Amendment that repeals or overrules the First Amendment. It's not in conflict with it; as Trump's lawyers point out, the provisions may be easily reconciled with the ruling that IF something is protected speech under the First Amendment, it does not constitute "insurrection or rebellion" nor "aid or comfort to the enemies [of the US]". Since that provision is not attempting to expand the definition of those things but rather to provide a disqualification as a result of them, this is the natural way to read it. That the Fourteenth Amendment is implicitly limiting the First is an extreme reach.

He did appeal it though. The Colorado Supreme Court had oral arguments on it like 9 days ago.

sorry, i edited my post so you replied to the pre-edited version so it looks a bit odd. i think the original petitioners made the appeal but i'm not sure if they are addressing just the 14th amendment issue or the 1st amendment issue as well. i've seen in some media reports that trump wants to challenge the 1st amendment issue.

Trump brings up 11 possible issues in his petition for review. Included was the First Amendment Issue

G. The district court ruled that President Trump’s political speech “incited” violence, even though the words he used never advocated violence. Instead, the district court found that President Trump’s supposed intent, and the effect of his words upon certain listeners, sufficed to render his speech unprotected under the First Amendment. Did the district court err in its application of First Amendment standards to President Trump’s speech?

Later, in his opening brief:

The trial court erred in its First Amendment analysis for two reasons. First, it failed to evaluate the words President Trump actually used on January 6th. Second, it expanded the context relevant to a Brandenburg analysis beyond anything recognized in precedent.

Courts must harmonize constitutional provisions. Even if “engage” includes “incite” Section Three can easily be harmonized with First Amendment rights protecting political speech under the Brandenburg standards.

Speech cannot be punished as incitement unless it (1) “advoca[tes] the use of force or of law violation,” (2) is “directed to inciting or producing imminent lawless action,” and (3) is “likely to incite or produce such action.” All three elements must be met: “the speaker’s intent to encourage violence (second factor) and the tendency of his statement to result in violence (third factor) are not enough to forfeit First Amendment protection unless the words used specifically advocated the use of violence….”

Thus, a court must evaluate the content, form, and context of speech.” Foremost is the objective content of the speech— where speech is protected, “its setting, or context, [can] not render it unprotected.” Intent is important, but only as an additional hurdle, not as a substitute for the required focus on the words themselves; tests focusing on a speaker’s intent or the effect on listeners—rather than the speaker’s words—are prohibited.

Despite this clear precedent, the trial court eschewed meaningful analysis of the objective meaning of President Trump’s words on January 6th. President Trump’s words were not as incendiary as language the Supreme Court has already protected as a matter of law. As a D.C. Circuit judge remarked last year, “you just print out the [President’s January 6] speech…and read the words…it doesn’t look like it would satisfy the [Brandenburg] standard.

On January 6th, President Trump called for protesting “peacefully and patriotically,” to “support our Capitol Police and law enforcement,” to “[s]tay peaceful,” and to “remain peaceful.” This patently fails to meet the first element of Brandenburg.

The trial court nonetheless relied on years of speech that long preceded President Trump’s January 6th speech. This broke radically with First Amendment jurisprudence and created a blatant double standard. While acknowledging the “prevalence of martial language in the political arena”—including “calling on supporters to ‘fight’ and ‘fight like hell,’” as Trump did—the trial court still argued that such standard political rhetoric was different for Trump because it “ignores both the significant history of Trump’s relationship with political violence and the noted escalation in Trump’s rhetoric in the lead up to, and on, January 6, 2021.” It concocted a radical new legal rule: in determining whether a defendant had the specific intent required by Brandenburg, courts may consider any speech ever uttered by the defendant, including to distinct audiences.

For this enormous expansion of the context permitted in a Brandenburg analysis, the trial court cited a single line of dicta in a Supreme Court case. That case held only that Brandenburg’s imminence requirement was not satisfied; it did not analyze specific intent and or hold that a speaker’s past speech, to distinct audiences, constituted incitement. No court has so held.

Applying this radical test, the trial court held that in determining specific intent for most speakers, we should examine the speech in the narrow context in which it was made and afford it the traditional protections—but for Trump, we should examine a curated compilation of speech going back years to decipher a hidden meaning. This runs counter to Wisconsin Right to Life’s injunction against an inquiry that leads to the “bizarre result” that what is “protected speech for one speaker” can lead to “criminal penalties for another.” Simply put, the trial court misapplied Brandenburg requiring reversal.

It's a crapshoot whether the Colorado Supreme Court rules for or against Trump on this issue, because it's a charged political question and an all-Democratic court. But it should be a 7-2 bitchslap (Sotomayor and Jackson in dissent) from SCOTUS at worst. If SCOTUS goes against Trump on this, the First Amendment is dead.

Trump didn't appeal it; the petitioners did. Trump did file a petition asking that if the decision is reviewed, the parts you referred to are reviewed also. "President Trump seeks review to ensure that if this Court takes up this case on appeal, it will consider the full scope of the constitutional, interpretive, and evidentiary issues." It is of course not clear whether they will do so.

that's a very cheeky opinion by the court. they find that the 14th amendment doesn't apply to Trump so there is no finding against Trump but then include a bunch of disparaging stuff about him that will never been challenged on an appeal. but this courts opinion on Brandenburg would not be held up by higher courts. they even include a case where the plain language used by the accused was much worse than Trump and the the accused was not convicted but then magically read further than the plain language of Trump to find that he did commit insurrection.

My understanding is that the bar to overturn the factual findings of a trial court is pretty high. I believe it has to be demonstrated that no reasonable judge could have come to that conclusion.

I agree the opinion is cheeky - the part ruling that section 3 doesn't apply to the presidency feels like she's begging to be overturned on appeal (and because it's a matter of law rather than a finding of fact it can be overruled more easily).

  • -14

That isn’t a factual finding; it is a legal conclusion and that is reviewed de novo. The “problem” is the circuit or scotus probably don’t need to address that interim conclusion to decide the issue.

So basically people who want to claim “Trump is an insurrectionist” can point to this case “that even the Republican SCoTUS” didn’t dispute while ignoring that disputing it isn’t relevant.

District court judge making a grand political conclusion antithetical to the law isn’t exactly uncommon. See for example the Republican judge in Texas and the abortion in the mail ruling.

It is and remains a joke of an opinion.

The decision is being appealed. Do you predict that the Colorado Supreme Court will find that Trump did not incite an insurrection?

  • -12

Depends a bit on the make up of panel (a lot of Biden and Obama judges on the tenth — I generally have little respect for Biden and Obama judges though there are exceptions such as Kagan). If it goes to SCOTUS I expect a strong bitch slap.

Would add this might stand on the premise that what you quoted is effectively dicta

Cool. My not-super-confident expectation is that the factual finding of insurrection will not be overturned at any point, though anything could happen in regards to the legal questions around applicability to the presidency. We'll see!

  • -13

Do you think the issue will be settled as a matter of law? That is, it would be easy to agree with the holding without addressing the issue.

I think that the judicial approach to the issue so far would suggest that the courts will not disqualify Trump but will also avoid saying he did nothing wrong. Judges seem to realize it would cause a massive drama and they aren't game to put themselves at the centre of it. E.g. if you read the part of the Colorado ruling that says the 14th amendment doesn't apply to the Presidency, the judge seems eager to emphasize the weaknesses in her own decision and explicitly says that it is partly based on not wanting to take such a drastic action.

I will be interested to see what happens if and when the issue is addressed by a GOP-aligned judge though. That might give a better indication of where SCOTUS is likely to land on the issue, and we all know it's ending up there.

Given Baude's politics, I suspect the motivation of the original law review article was "Dear Conservative Movement, if you want to yeet Trump and replace him with a more electable candidate, here is how to do it without having to beat him in a primary." At the time he published the article, it had only just become clear that Trump couldn't be beaten in a Republican primary, but non-MAGA Republicans were still assuming that Trump would go down to Biden in a landslide given how badly MAGA candidates did in 2022.

This isn't an area of law where a judge is going to worry about setting a dangerous precedent, so I think the average GOP-aligned judge would disqualify Trump iff he thought doing so would help the GOP. Right now, the core MAGA vote is sufficiently behind Trump that any attempt by the GOPe to change candidate would blow up the party, so Trump is probably safe.

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