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The Limits of Free Speech

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The First Amendment to the U.S. Constitution says, "Congress shall make no law ... abridging the freedom of speech ...."  The Fourteenth Amendment is understood to extend this limitation to state legislatures.

Note the wording carefully.  It does not say "the freedom of speech" has no limits.  The freedom of speech may not be abridged, meaning reduced from what it was when the First Amendment was adopted.  "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." Schenck v. United States, 249 U. S. 47, 52 (1919) (Holmes, J.).

Threatening people is not within "the freedom of speech."  Fourteen years ago, CJLF defended Virginia's cross-burning law as applied to a cross burned in a manner that constituted a threat to specific people, and the U.S. Supreme Court upheld it as so applied in Virginia v. Black.*

A few years later, the Virginia Legislature added a "noose law" along similar lines.   The Virginia Court of Appeals upheld the law as applied on Nov. 22 in Turner v. Commonwealth.

Flag Burning

President-elect Trump has raised the issue of criminalizing flag-burning in a tweet.  The constitutional question is closer than many might think.  In 1989, Texas v. Johnson was decided by a bare 5-4 majority.

The justices did not divide on liberal/conservative lines in that case.  "Conservative" Justice Antonin Scalia provided the fifth vote to overturn the statute.  "Liberal" Justice John Paul Stevens was in the dissent.

Should the question be considered closed as a matter of respect for precedent (stare decisis)?  Some of our friends on the left think that precedent is a ratchet.  All precedents favoring their view are sacrosanct, while any precedents they disagree with are constantly subject to reexamination.  Justice Thurgood Marshall sadly ended his tenure on the high court with one of the most hypocritical opinions I have ever seen, excoriating his colleagues for overturning a relatively minor (and, in my view, clearly wrong and unjust) Eighth Amendment precedent while Marshall himself had obstinately refused to accept a far more important (and clearly correct) Eighth Amendment precedent for 15 years.

On the merits, I think that flag burning has to be considered "protected speech" as long as we consider "speech" to extend beyond the literal meaning of the word into nonverbal expression.  Anti-flag-burning statutes target content rather than "time, place, or manner."  To authorize such statutes within a coherent body of free-speech jurisprudence, we would have to tear up far more than Johnson itself, and that is enough to let the sleeping dog lie. 

Of course, we can and should exercise our own right of free speech to denounce the flag-burning scum in the most vigorous terms, but the government cannot punish them unless they violate some other, non-expression-directed law.  Burning someone else's flag without permission is a crime.  Burning a flag at a gas station ought to be a crime, if it isn't already.

Justice Ginsburg on Kaepernick

Justice Ginsburg nails it on this one.  Teresa Welsh reports in the SacBee:

Ruth Bader Ginsburg is known for saying what she means. So no one should be surprised the Supreme Court justice shared her opinion about San Francisco 49ers quarterback Colin Kaepernick's national anthem protest in stark terms.
Sam Hananel reports for AP:

Supreme Court Chief Justice John Roberts has temporarily blocked a Senate subpoena that seeks information on how the classified advertising website screens ads for possible sex trafficking.

The order Tuesday came hours after Backpage CEO Carl Ferrer asked the high court to intervene, saying the case threatens the First Amendment rights of online publishers.

A federal appeals court ruled Friday that the website must respond to the subpoena within 10 days. Roberts said Backpage does not have to comply with the appeals court order until further action from the Supreme Court. He requested a response from the Senate by Friday.
The order reads in full:

IT IS ORDERED that the August 5, 2016 order of the United States District Court for the District of Columbia, in case No. 16-mc-621, is hereby stayed pending receipt of a response, due by noon Friday, September 9, 2016, and further order of the undersigned or of the Court
The individual Justice assigned to the circuit (the Chief, for DC) is authorized to stay a lower court's order, but they typically refer the application to the full Court for anything more than a brief stay.  I expect that "further order" will come early next week, and it will be from the full Court.
Wow.  You can't make this stuff up.

The DNC chair got the ax when hacked emails definitively proved what just about everyone paying attention pretty much knew -- that she was using the party apparatus to favor one primary candidate over the other.  We didn't think it warranted mention on this blog.

But who is the substitute convention opener?  It is none other than the notorious Baltimore Mayor Stephanie Rawlings-Blake, the one who said as her city was burning:

It's a very delicate balancing act because while we try to make sure that they were protected from the cars and the other things that were going on, we also gave those who wished to destroy space to do that as well, and we work very hard to keep that balance and to put ourselves in the best position to de-escalate.
She quickly blamed others for supposedly mischaracterizing her words, saying she did not mean what she plainly said.

One foolish statement would not have been so bad if she had followed up by doing everything right after that, but the City of Baltimore has not.  Closer to the opposite, and it has the crime to prove it.

If the Democratic Party wanted to make this election all about who is on the criminals' side and who is on the law-abiding people's side, with themselves being the wrong side, it could hardly have chosen a more effective face to put forward to open its convention.

And just to be very, very clear, there is no balance to be struck with free speech when a full-blown riot is in progress.   Government can constitutionally put "time, place, and manner" limits on speech to serve important interests, and peaceful protests can be postponed until peace is restored.

Amending the Bill of Rights

The WSJ has this editorial, titled Clinton to Madison: Get Me Rewrite.

"Today, I'm announcing that in my first 30 days as President, I will propose a constitutional amendment to overturn Citizens United and give the American people--all of us--the chance to reclaim our democracy," Mrs. Clinton said in a taped speech to the Netroots Nation conference of progressives. First 30 days? Who knew the 225-year-old First Amendment was in need of such urgent revision?
Is amending the Bill of Rights fair game?  How about getting rid of the defendant's privilege not to testify in a criminal case?  Can we give it the heave-ho?  Probably not.

But those who agree with Mrs. Clinton would say her amendment does not change the real First Amendment, just a misinterpretation of it by the Supreme Court.  Fair enough.  Let's have an amendment to scrape off all the barnacles attached to the criminal law and procedure provisions of the Bill of Rights that were not included in those amendments as originally understood.

First over the side is the Fourth Amendment exclusionary rule.  Miranda is next. 

Dump that stupid rule that the prosecutor cannot comment on the defendant's failure to testify.  Have you seen the prosecutor's closing argument in the BBC series Broadchurch?  Great fun.  Don't try this at home.  Almost makes you want to move to England.  Except for the wigs.
The U.S. Supreme Court today decided the case of the bribery convictions of a former Governor of Virginia and his wife, McDonnell v. United States.

To convict the McDonnells of bribery, the Government was required to show that Governor McDonnell committed (or agreed to commit) an "official act" in exchange for the loans and gifts. The parties did not agree, however, on what counts as an "official act." The Government alleged in the indictment, and maintains on appeal, that Governor McDonnell committed at least five "official acts." Those acts included "arranging meetings" for Williams with other Virginia officials to discuss Star Scientific's product, "hosting" events for Star Scientific at the Governor's Mansion, and "contacting other government officials" concerning studies of anatabine. Supp. App. 47-48. The Government also argued more broadly that these activities constituted "official action" because they related to Virginia business development, a priority of Governor McDonnell's administration. Governor McDonnell contends that merely setting up a meeting, hosting an event, or contacting an official--without more--does not count as an "official act."
The Court agrees with McDonnell on the main point in a unanimous opinion by Chief Justice Roberts.  To hold otherwise would raise serious First Amendment concerns.

The Court rejects McDonnell's attack on the "honest services" statute as unconstitutionally vague, a holding based in part on the narrow interpretation in the previous part of the opinion.

The Court declines to address McDonnell's "insufficient evidence" claim because the parties have not yet had a chance to address it in light of the Court's clarification of the elements of the offense and therefore leaves that issue to the Court of Appeals on remand.  That is important because a reversal on incorrect jury instructions (the main point addressed in today's opinion) permits a retrial, but a reversal on insufficient evidence is effectively an acquittal and precludes retrial.
Eugene Volokh has this post at the Volokh Conspiracy on one of the most blatant violations of the First Amendment right of freedom of speech that I have ever heard of from any government agency in my lifetime, and that is saying quite a lot.

Here is my question.  Is this violation of the First Amendment so clear that the commissioners can be prosecuted for the federal crimes of conspiracy against free exercise of federal constitutional rights, 18 U.S.C. §241, or deprivation of rights under color of law, §242?
In my last post, I gave a preview (courtesy of Harvard Law Prof. Mark Tushnet) of how dreadful a Clinton-appointed Supreme Court would be.

I am unhappy to report that that's not the principal reason Sec. Clinton should be denied the keys to the White House.  The principal reason is that, as she has already made clear, she will use the awesome power to prosecute as a political tool  If that is not the road to tyranny, what is?

That's a bold proposition, sure.  I invite readers to draw any other conclusion after reading the following account by Stephen F. Hayes in the Weekly Standard.
CJLF sometimes gets involved in freedom-of-speech issues as they sometimes overlap with criminal law.  "Hand over your wallet or I will kill you," is speech.  It is also robbery.

On college campuses today, the principal threat to freedom of speech comes from the political left.  The disgraceful conduct of officials at Marquette University in the case of Professor John McAdams is described in this editorial at the WSJ.

But not everyone in academia has lost their minds.  The Standing Committee on Open Expression at Emory University has this thoughtful opinion on some recent incidents there.

Thanks for the tip to Eugene Volokh, who notes his brother is on the committee.
In some corners of the Bizarro World of left-wing academia, freedom of speech and freedom of the press are limited to expression of Politically Correct ideas.  What do you call it when a Politically Incorrect student journalist tries to cover a protest, and a professor of communications, no less, calls for "some muscle" to forcibly remove him?  The City of Columbia prosecutor calls it assault in the third degree.

Erik Wemple, media blogger for the WaPo, reports:

Melissa Click, an assistant professor of communication at the University of Missouri, has been charged with third-degree assault by the city of Columbia prosecutor's office, an assistant at that office confirmed today to the Erik Wemple Blog. The arrest comes months after Click was captured on video asking for "some muscle" to counter a student journalist at a November protest at the university. She also pushed the student journalist's camera.

The ACLU, Protecting Your Rights.

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Unless you happen to support Donald Trump, in which case you should get shot.

And no, the ACLU itself did not make this statement, but a board member of its Colorado chapter did.  He since resigned and, surprise of surprises, is unavailable for comment.

Here is the story.
A neighbor of the Jihadist killers in San Bernardino noticed that something suspicious was going on next door, but said nothing about it out of fear of being labelled a "racist."  Here's the story:

Neighbors of San Bernardino shooter Syed Rizwan Farook told ABC Wednesday that they noticed "suspicious activity" at Farook's home recently, but did not report it for fear of being called racist....

Aaron Elswick -- a neighbor of Farook's mother in Redland -- said that another neighbor told him "they had I guess been receiving packages -- quite a few packages within a short amount of time, and they were actually doing a lot of work out in the garage."

"She was kind of suspicious and wanted to report it," Elswick explained, "but she said she didn't want to profile."

When the authorities finally searched the house, too late for the 14 murder victims, they found an arsenal of automatic weapons and what amounted to a bomb factory.

Unfortunately, it turns out that Mr. Elswick has more to fear than merely being branded a racist.  As noted, he might realistically have feared an investigation by Attorney General Lynch.

President Obama says he abhors "gun violence."  Having helped mold a culture in which people are cowed from reporting the possibility that Middle Eastern neighbors could be stockpiling AK-47's, my guess is that his abhoring has just begun. But don't count on his asking Ms. Lynch to change her watch-your-mouth priorities.

P.S.  Liberals would often tell us that, if we start to curtail our freedoms out of fear, the terrorists will have won. This turns out to be true, just not in the way they wanted us to believe.

Attorney General to Free Speech: Drop Dead

Attorney General Loretta Lynch doesn't want you saying offensive stuff about Islam or Muslims.  And if you don't wise up, she's prepared to do something about it.

Hence this story from ABC News:

"Obviously this is a country that is based on free speech," Lynch told the audience at the Muslim Advocates dinner in Arlington, VA. "But when that edges towards violence...we will take action."

I don't know exactly what "edges towards violence" means, and I think there used to be this thing called the "void-for-vagueness" doctrine circumscribing the actions of prosecutors.  But Ms. Lynch is only Attorney General, so I can't expect her to know everything. 

Still, I want to take this opportunity to test the new limits (or non-limits) on prosecution of speech by saying some things that could quite plausibly be viewed as "edging toward violence."  DOJ, I hope you're listening.

DoJ Gives Lois Lerner a Free Pass

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Sari Horwitz reports for the WaPo:

No criminal charges will be filed in the two-year investigation into whether any IRS officials, including Lois Lerner, committed crimes in connection with the handling of tax-exemption applications by conservative groups, the Justice Department announced Friday.
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Rep. Darrell Issa (R-Calif.) criticized the Justice Dept.'s decision not to bring charges as "giving Lois Lerner a free pass" and called it "a low point of accountability in an Administration that is better known for punishing whistleblowers than the abuse and misconduct they expose."

"After stating that their investigation confirms that Tea Party and conservative groups were improperly targeted, they dismiss it merely as a byproduct of gross mismanagement and incompetence - ignoring volumes of evidence in the public record and efforts to obstruct legitimate inquires," Issa said in a statement.

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