Thursday, January 21, 2021

Stupid Congressional Tricks

Hey! I'm busy! You have to remind me I can't pack heat wherever I go in D.C.!

(Writing as a person who has never owned a gun in his life, but has nothing against them either, in general:  I really don't understand the perceived need to carry one if it is not part of your job requirements.)
No. Not only is this dicta from Holmes bad law (all dicta from Holmes is bad law is, or should be, the rule), the legal argument under the 1st Amendment behind it was rejected in 1969, or 20 years before AOC was born. Bad legal takes are just that pernicious. As for the notion of what is protected speech and what shouldn't be protected speech, the long line of cases regarding opinion as protected speech can be found in this delightful blog post, from which I quote:

But the legal system — which, after all, is a vocation for tradesmen — does not recognize the inviolability of good reputation of society's elite. Whatever the truth of what happened on that ill-fated expedition, Mr. Johnsen faces some formidable challenges. Under the First Amendment, we all have rather free reign to state opinions on a wide variety of matters. Courts — even courts in Florida — generally find that statements of opinion are by their nature not defamatory. Courts have often found opinions like "colorful, middle-aged, paranoid schitzo" to be protected speech. See, e.g., Lampkin-Asam v. Miami Daily News, Inc., 408 So.2d 666, 667 (1981) (calling plaintiff as “almost paranoid” was expression of pure opinion entitled to absolute constitutional protection); Wetzel v. Gulf Oil Corp., 455 F.2d 857 (9th Cir.1972) (calling plaintiff “nuts” and “crazy” was expression of pure opinion); Fram v. Yellow Cab Co. of Pittsburgh, 380 F.Supp. 1314 (W.D.Pa.1974) (statement that plaintiff's comments sounded “a little bit like the sort of paranoid thinking that you get from a schizophrenic” was pure opinion); DeMoya v. Walsh, 441 So.2d 1120 (1983) (calling co-worker “raving maniac” and “raving idiot” was pure opinion, not slander).

(I'm trying to tempt you to read it by including some extraneous material relevant to the original context but not necessarily so to our discussion.  I have highlighted the major point, however.)  Incitement is a separate issue, but it is a remarkably narrow one, and is not limited to speech alone.  Yes, in certain circumstances action=speech (generally), i.e., flag burning.  But in general actions are not speech, and incitement depends as much on action as on words, despite efforts of Republicans in the Senate to argue Trump's words were all that mattered, his actions not so much (I actually heard one Senator this morning on a news program sensibly pointing out Trump's actions in the White House were subject to scrutiny on an incitement charge.  He not only enjoyed the spectacle, but he even resisted sending aid to quell the assault on his own government.  That's a rather different matter from calling President Biden "Sleepy Joe."  Which, by the way, some Q supporters think Trump was declaring Biden a "sleeper agent" for Trump.  Only in America, folks.)  The real problem with charging incitement is proving a necessary connection between the violence and the person charged with inciting it.  Holmes' silly example assumes such a connection (and a very direct one) between the cry and the ensuing panic.  But people panic during a fire, so crying out a warning is helpful?  Or inciting?

Opinions differ, no?
Yeah, I feel the same way sometimes.  It really has nothing to do with the content of this post; I just felt like adding it here rather than overemphasizing it in a post of its own.
Posted by at

No comments:

Post a Comment

Subscribe to: Post Comments (Atom)