Friday, January 15, 2021

Ignoring Right-Wing Terrorism Led Us to This Dangerous Situation

by Neil H. Buchanan

This country has been downplaying and even ignoring the threat of domestic terrorism for decades.  I concede that this is a step up from the previous decades of state-sponsored racist terrorism, but looking the other way while non-state actors (and all too many state actors "going rogue") do their worst to vulnerable populations amounts to little more than outsourcing what spy novelists call the "wetwork" to private contractors.

To be sure, things did become less bad after the end of the Jim Crow era.  I do not have the statistics at hand, but I expect that they would show that the indiscriminate killing of nonwhites has gone down, hopefully precipitously.  Even so, the fundamental point of the Black Lives Matter movement, indeed the reason for the existence of the entire panoply of civil rights groups, is that we can see with our own eyes that America in the third decade of the twenty-first century still treats non-White lives too often as disposable.  What now?

Thursday, January 14, 2021

Too-Clever Lawyering Is Toxic, But Hawley's Arguments are Not Even Mildly Clever

by Neil H. Buchanan
As a law professor and a devout believer in the peacekeeping role that a well functioning legal system can guarantee, I am especially worried when the rule of law is undermined from within.  The most common versions of this problem include lawyers abusing the legal process in nakedly cynical ways, strategies that cause people to exclaim: "That's why people hate lawyers!"

Dramatic depictions of lawyers in film and on television feed on and reinforce that kind of system-threatening erosion of confidence in the rule of law.  I recently caught up with two of the best shows on television that I had inexcusably ignored until now, "Breaking Bad" and its subsequently produced prequel, "Better Call Saul."  The latter show is built around a relatively minor character from the former show, Jimmy McGill, who changes his name to Saul Goodman (as in " 's all good, man!"), also known as "Slippin' Jimmy."  Lawyers do have many positive moments on those shows, but even more bad ones.

But those are merely two of the countless shows and movies, covering the full range of quality, that give people reason to suspect that the law is a big con.  And not without good reasons.  Law is too often a commodity that goes to the highest bidder.  Too many prosecutors suborn perjury, abuse the plea process, and refuse to drop cases even after exculpatory evidence has been produced and verified.  Too many divorce lawyers make matters worse for all involved.  (Another dramatic marvel: "Marriage Story.")

And by "too many" in the paragraph above, we ought to mean "any."  What happens when the system breaks?

Wednesday, January 13, 2021

Incitement, Imminence, and Free Speech: The Internet is a Game Changer

 By Eric Segall

There is a great tension between constitutionally protected free speech and expression that incites others to commit violence or other illegal acts. For example, pure political speech that includes heinous content such as bigotry, sexism, or general expressions of hatred towards identifiable groups has been protected in America by the Supreme Court since the 1960's, while other democracies do not tolerate such ideas. Holocaust deniers cannot be punished in America while in some European countries they can be fined and/or imprisoned for such speech. There is a general consensus here that non-targeted expressions of hate should be met with more speech, not governmental censorship. Additionally, we are allowed to speak out against our government in ways that do not include specific instructions to commit crimes or acts of violence. But where is the line between calls for dramatic change and illegal incitement or what the Court has called true threats? The tragic events of last Wednesday raise these admittedly difficult questions.

The key Supreme Court decision in the area of incitement is Brandenburg v. Ohio. In that case, the Supreme Court overturned the conviction of a Ku Klux Klan leader for making hateful comments about Blacks and Jews. Among other things, he said, “I believe the n****r should be returned to Africa, the Jew returned to Israel." He was convicted under an Ohio law that made it a crime to “advocate or teach the duty, necessity, or propriety of violence as a means of accomplishing industrial or political reform." The Court, recounting prior cases, said that in order to be punished for incitement, the speech must be “directed to inciting or producing imminent lawless action and is likely to incite or produce such action." The Ohio law didn't satisfy that standard, and the Klan leader was set free. This test, unfortunately, is still the law today.

As I detailed in a prior article, lower courts have had an enormously difficult time applying this standard to the internet. The main difficulty has been the imminence requirement. As I've previously written, the imminence requirement:

makes sense in the context of fiery speech uttered during political rallies, but it makes much less sense when applied to speech posted on the Internet where the threat can last forever and be seen by millions of people around the world. For example, there is a significant difference between a person who at a pro-life rally, yells that a particular doctor should be “stopped” if a year from now he is still performing abortions, and a person posting on the Internet the doctor’s home address and suggesting the same sentiment. The imminence requirement makes sense for the former but hardly lessens the danger of the latter. The fact of permanence, as well as the great reach of the threat, makes Internet speech more dangerous than rallying cries at political protests, and the Brandenburg test is just not flexible enough to deal with that problem.

Tuesday, January 12, 2021

Don't Ask Whether Trump Falsely Cried "Fire" In A Crowded Theater. Ask Whether He Tried To Start A Reichstag Fire

 by Michael C. Dorf

Among the most foolish ideas circulating right now is that Donald Trump cannot be impeached and removed for his role in fomenting an insurrection aimed at Congress because he engaged in constitutionally protected freedom of speech. The idea is foolish for at least three reasons:

(1) Conduct, including conduct accomplished through speech, need not be criminal in order to be the basis for a valid impeachment. Even Trump's apologists acknowledged as much during the hearings over Trump's first impeachment. So, if we assume arguendo that Trump cannot be criminally prosecuted for his role in inciting the insurrection, he can nonetheless be impeached, removed, and disqualified from holding office in the future based on his outrageous assault on democracy up to and through January 6.

(2) But let's be clear that this is at best an arguendo assumption. We don't yet know the full extent of Trump's role behind the scenes both before and during the assault on the Capitol. As Prof Philip Bobbitt writes persuasively, perhaps the most plausible account of Trump's conduct was that it formed part of a plot to create sufficient violence and chaos so as to give him a pretext to declare martial law and refuse to give up power. Legal scholars and other observes are asking whether he crossed the line from lawful advocacy to something like Holmes's man falsely crying "fire" in a crowded theatre. The more relevant question is whether Trump's provocation was part of an effort to create a Reichstag fire.

(3) Even taking an unduly narrow and lawyerly view of the matter, Trump did commit a crime that could be the basis for both criminal prosecution as soon as he is out of office and impeachment, removal, and disqualification now. The key precedent is Brandenburg v. Ohio, which, like the January 6 insurrection, featured white supremacists and antisemites. It states the following legal standard:

the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

The language after "except" is a pretty good description of what Trump did on January 6.

Monday, January 11, 2021

Of Veterans, Constitutional Text, and Sovereign Immunity Run Amuck

 By Eric Segall

Disclaimer: There are serious threats facing our country and last week's events obviously should be on everyone's mind. But life does go on and this post was written before the attack on our government. There will be posts this week on that subject, but the topic of this one is extremely important, so I hope people will understand why we are posting it today. The pending cert petition discussed below needs to be granted by the Court.


The United States Constitution expressly grants Congress the authority in Article I, Section 8 to "raise and support" the armed services. Pursuant to this enumerated power, Congress enacted the Uniformed Services Employment and  Reemployment Act ("USERRA") which, among other things, prohibits employers, including the states, from discriminating against veterans because of their military service. 

Although this statute is easily within Congress' authority under its power to raise and support the military, and although Article VI unambiguously makes federal law supreme, "anything in the Constitution or laws of any State to the contrary notwithstanding," a Texas appellate court ruled that the law was unconstitutional because of state sovereign immunity, and the Texas Supreme Court refused to hear the case. This decision is not only grossly unfair to veterans across the land, but is completely inconsistent with the Constitution's text and history. The blame, however, lies not with the Texas courts but with the United States Supreme Court.  

Friday, January 08, 2021

There is No Constitutional Right of Armed Assembly

 by Michael C. Dorf

In October 2020, I participated in a terrific all-day conference on the Second Amendment sponsored by the Duke Center for Firearms Law. Papers by the panelists will be published in the Northwestern University Law Review. With final versions due to the journal's editors this week, I recently put the finishing touches on my draft. The timing was fortuitous because an advance copy of my draft became available this week. My paper bears the title When Two Rights Make a Wrong: Armed Assembly Under the First and Second Amendments. It went live on SSRN (where you can download it) on the afternoon of Wednesday January 6, just as a mob of Trump-incited seditionists were attacking the U.S. Capitol.

As terrible as the January 6 insurrection was, it could have been much much worse. Capitol police responded to the mob with tear gas and, in one fatal incident, live fire. Although many people have understandably asked why police did not respond with greater force--especially given the more aggressive tactics used against Black Lives Matter demonstrators last summer--it is hardly clear that more force would have quelled the seditious Trumpsters, at least some of whom were heavily armed.

One can only imagine what might have unfolded if Wednesday's confrontation had occurred in, say, the Michigan Statehouse, where anti-government protesters were legally permitted to carry firearms last spring. Perhaps we should count ourselves lucky that the mob was cleared in hours rather than resulting in an armed standoff requiring days or weeks and much more bloodshed to end. The District's strict firearms laws and its high-profile arrest earlier in the week of Proud Boys leader Enrique Tarrio on property destruction and weapons charges may have deterred many of Trump's shock troops from bringing and/or using firearms.

But wait. What about the constitutional rights of the mob? Is there a right of private citizens to take firearms into the Capitol building? Thankfully, the Supreme Court's ruling in District of Columbia v. Heller makes clear that the answer is no. Justice Scalia wrote there that the Second Amendment does not invalidate "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings."

Thursday, January 07, 2021

The January 6th Insurrection

by Neil H. Buchanan
The United States, I have suggested more than once, is quite possibly a "dead democracy walking."  After returning to that metaphor in a column barely more than a month ago, I wrote: "If we are too far gone to prevent the worst from happening -- if the end is only a matter of time -- then the best we can do is to prepare for what is inevitable.  The beginning of such preparation is a clear-eyed assessment of where things stand, understanding why it seems certain that things will still turn out badly."
To try to put this in personal terms (and to steer the metaphor away from its original use to describe the victims of state-sponsored death), imagine receiving the devastating news that you have contracted a deadly disease and have only a short time left to live.  Thankfully, I have thus far never been confronted with anything even remotely along those lines.  I can imagine, however, that no matter how much one tries to anticipate what the process will be like when the pain and breakdown ultimately become unmistakable, the actual experience of symptoms would still come as a shock.  The vestiges of denial and hope on which one relies for solace begin to flicker.
Yesterday felt like that, as I watched the news from Washington.

By now, it has become a cliche to predict the worst and then say, "I hope I'm wrong."  The sentiment is a good one, but as far back as the early Obama years nutcases like Glenn Beck (remember him?) were predicting that our first Black president would lead a fascist/communist/Muslim/socialist takeover, only to turn to the camera and say with wide eyed mock innocence: "I hope I'm wrong."  As I sit and think about yesterday's terrifying events at the United States Capitol building, I certainly am not tempted to say, "See, I was right all along!"  I am saying not only that I wanted to be wrong but that even though something like this has long seemed inevitable, seeing it happening was still a shock.

My thoughts are too jumbled right now to allow me to pen a longer piece, so I will point to two of my Dorf on Law columns that seem especially relevant.

The first, which I have already republished as a Dorf on Law "classic" over the recent holidays, is titled "There Will Be (More) Blood," originally published on October 20, 2020.  It includes this:
"Most importantly, the biggest story continues to be that Trump simply cannot stop encouraging his most extreme supporters to be ready to support him with violence.  Blood has already been shed because of Trump this year.  Shockingly but not at all shockingly, he seems to want more blood to flow."
"The second article, published four years earlier to the day (October 20, 2016), is titled "Donald Trump, Insurrectionist."  Discussing the third presidential non-debate before that fateful election, I wrote:
"Donald Trump announced at the debate that he will not accept the results of the presidential election, unless he wins.

"If that is not a plan to foment insurrection, I do not know what is.  This is not the kind of thing that one says lightly, but it is chillingly accurate.
"Trump has now announced to the world that his losing will prove that the election is rigged against him.  He will thus arrogate to himself the right to say that he did not lose fair and square.  If you are not scared, you should be."
Perhaps yesterday's events -- a riot incited by the man who is still somehow President of the United States -- will change history in a good way, somehow purging our body politic of the disease that has been killing us for these long, depressing years.  I hope so.  The Trump mob did not achieve its goal yesterday, and that is good.  Maybe this will break the fever, but even if it does, we have a long path to recovery ahead of us, and success is by no means guaranteed.