site banner
PaperclipPerfector  11mo ago (text post)   27236 thread views

Culture War Roundup for the week of December 11, 2023

This weekly roundup thread is intended for all culture war posts. 'Culture war' is vaguely defined, but it basically means controversial issues that fall along set tribal lines. Arguments over culture war issues generate a lot of heat and little light, and few deeply entrenched people ever change their minds. This thread is for voicing opinions and analyzing the state of the discussion while trying to optimize for light over heat.

Optimistically, we think that engaging with people you disagree with is worth your time, and so is being nice! Pessimistically, there are many dynamics that can lead discussions on Culture War topics to become unproductive. There's a human tendency to divide along tribal lines, praising your ingroup and vilifying your outgroup - and if you think you find it easy to criticize your ingroup, then it may be that your outgroup is not who you think it is. Extremists with opposing positions can feed off each other, highlighting each other's worst points to justify their own angry rhetoric, which becomes in turn a new example of bad behavior for the other side to highlight.

We would like to avoid these negative dynamics. Accordingly, we ask that you do not use this thread for waging the Culture War. Examples of waging the Culture War:

  • Shaming.

  • Attempting to 'build consensus' or enforce ideological conformity.

  • Making sweeping generalizations to vilify a group you dislike.

  • Recruiting for a cause.

  • Posting links that could be summarized as 'Boo outgroup!' Basically, if your content is 'Can you believe what Those People did this week?' then you should either refrain from posting, or do some very patient work to contextualize and/or steel-man the relevant viewpoint.

In general, you should argue to understand, not to win. This thread is not territory to be claimed by one group or another; indeed, the aim is to have many different viewpoints represented here. Thus, we also ask that you follow some guidelines:

  • Speak plainly. Avoid sarcasm and mockery. When disagreeing with someone, state your objections explicitly.

  • Be as precise and charitable as you can. Don't paraphrase unflatteringly.

  • Don't imply that someone said something they did not say, even if you think it follows from what they said.

  • Write like everyone is reading and you want them to be included in the discussion.

On an ad hoc basis, the mods will try to compile a list of the best posts/comments from the previous week, posted in Quality Contribution threads and archived at /r/TheThread. You may nominate a comment for this list by clicking on 'report' at the bottom of the post and typing 'Actually a quality contribution' as the report reason.

6
Top Bottom Old Controversial Comments
Jump in the discussion.

No email address required.

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.

What is this place?

This website is a place for people who want to move past shady thinking and test their ideas in a court of people who don't all share the same biases. Our goal is to optimize for light, not heat; this is a group effort, and all commentators are asked to do their part.

The weekly Culture War threads host the most controversial topics and are the most visible aspect of The Motte. However, many other topics are appropriate here. We encourage people to post anything related to science, politics, or philosophy; if in doubt, post!

Check out The Vault for an archive of old quality posts. You are encouraged to crosspost these elsewhere.


Why are you called The Motte?

A motte is a stone keep on a raised earthwork common in early medieval fortifications. More pertinently, it's an element in a rhetorical move called a "Motte-and-Bailey", originally identified by philosopher Nicholas Shackel. It describes the tendency in discourse for people to move from a controversial but high value claim to a defensible but less exciting one upon any resistance to the former. He likens this to the medieval fortification, where a desirable land (the bailey) is abandoned when in danger for the more easily defended motte. In Shackel's words, "The Motte represents the defensible but undesired propositions to which one retreats when hard pressed."

On The Motte, always attempt to remain inside your defensible territory, even if you are not being pressed.


New post guidelines

If you're posting something that isn't related to the culture war, we encourage you to post a thread for it. A submission statement is highly appreciated, but isn't necessary for text posts or links to largely-text posts such as blogs or news articles; if we're unsure of the value of your post, we might remove it until you add a submission statement. A submission statement is required for non-text sources (videos, podcasts, images).

Culture war posts go in the culture war thread; all links must either include a submission statement or significant commentary. Bare links without those will be removed.

If in doubt, please post it!


Rules


Recommended Posts And Communities

Recommended Realtime Chats