Advocating genocide is never incitement

There’s a disturbing trend these days to claim or imply that language is violence. That, of course, is nonsensical rubbish that should have no place in a serious discussion, but here we are. (My history of urging that Philosophy 101 be mandatory at the high school level is reaffirmed as a good idea every single day.) In particular, there has been a growing position that advocacy of genocide is such abhorrent violence that it, in fact, is not free speech. Again, nonsensical rubbish. Here is one example of someone saying as much:

The growing fascist movement in the United States often claims that it is marching for “free speech” and complains that Antifa and other opponents are violating their rights. Unfortunately, this cynical claim has won some credibility among liberals and even the ACLU. But the law does not protect the advocacy of violence any more than it protects child pornography. These well-established legal principles should be extended to prohibit the advocacy of genocide, the ultimate violence.

Arguing about the free speech rights of Nazis, fascists, and KKK members is a trap. The issue is not speech, it is violence. The fascists do not want to argue with us, they want to kill us.

I originally picked this article merely because it was a quick result on Google; my goal here was to generally address the issue of calling genocide-advocacy violence. However, the muddled understanding of free speech is too much to ignore. The article continues:

A brief review of U.S. law demonstrates that fascist advocacy of violence and genocide can and should be prohibited. In 1969 the U.S. Supreme Court ruled in Brandenburg v. Ohio that there is no free speech right to advocate violence when there is a likelihood that violence will actually occur. The Court traced the development of U.S. law from its earlier prohibition of even abstract teaching of the necessity of violence for accomplishing social change to protecting such speech “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

As it so happens, I made this post because I wanted to specifically talk about Brandenburg. Nearly every person who claims speech is violence has never heard of the case. The fact that this article brings it up is both surprising and, for the author, embarrassing. Brandenburg is the precise reason advocacy for genocide is always protected speech:

The Court’s Per Curiam opinion held that the Ohio law violated Brandenburg’s right to free speech. The Court used a two-pronged test to evaluate speech acts: (1) speech can be prohibited if it is “directed at inciting or producing imminent lawless action” and (2) it is “likely to incite or produce such action.” The criminal syndicalism act made illegal the advocacy and teaching of doctrines while ignoring whether or not that advocacy and teaching would actually incite imminent lawless action. The failure to make this distinction rendered the law overly broad and in violation of the Constitution.

This couldn’t possibly be more on point. Advocating for genocide is 1) advocacy for a necessarily lengthy process and 2) often an advocacy for a change in law. Both of these points immediately fail the first prong of the test. A lengthy process – that is, systematic killing of an entire group of people – cannot possibly incite imminent action, lawless or not. Genocide is, by definition, not imminent. And where its advocates want a change in the law that allows for genocide…well, I mean. C’mon. That’s not only a lengthy process that requires years of lobbying and voting, but just imagine if you weren’t allowed to campaign for a change in the law because it was unpopular.

The article continues:

We are not proposing that offensive speech, or even speech that many consider hateful because of its abusive treatment of people based upon their race, gender or ethnicity, be outlawed. A free society must tolerate speech that is hurtful or offensive. But no civilized society must or should tolerate behavior by individuals or groups of people that promotes violence and even the total destruction of people based upon their color, gender, religion, or origin.

Notice the subtle bait-and-switch I’ve highlighted. We’re supposedly talking about speech, but the author here changes the issue to behavior. It’s a tacit surrender of the issue. Speech which fails to incite – and advocacy of genocide fails to incite, through and through – must be tolerated. Despite the incorrect interpretation of the specific ruling that renders the entire article wrong, the author acknowledges as much.

Just imagine if advocating for something violent was itself considered violence. We would have to lock up all the people who support the death penalty. Every shitty YouTube commenter who says [enter politician] should be hanged for [enter crime, usually treason] would have to be charged with criminal wrongdoing. And what’s the next step? If advocating for general violence at some indeterminate point in the future is violence, then would it also be violence for someone to advocate for the right to advocate for general violence? If I think neo-Nazis and antifa people should be able to advocate for violence, am I engaging in violent speech?

Here’s the bottom line. Advocating for genocide is free speech. You can talk about your desire to emulate Nazi Germany, if you wish. You can talk about your desire to kill all Jews or Muslims or Christians or blacks or whites. Take your pick. You can even say we should round-up and murder all the people who say we should round-up and murder other people. You are free to do that. It is 100% free speech.

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Martin Shkreli engaged in protected speech

Martin Shkreli, the CEO that so-called news organizations inappropriately refer to by the nickname “pharma bro”, recently had his bail revoked:

Shkreli, 34, was hauled off to the Brooklyn Metropolitan Correctional Center on Wednesday night after a judge revoked his bail over a Facebook posting that offered $5,000 to any follower who would grab a hair off Hillary Clinton’s head during her book tour.

The former pharmaceutical executive — who first came to national attention for hiking the price of a life-saving drug — insisted the posting was a joke. The judge, however, wasn’t laughing.

(To be clear, I don’t actually care that he has been nicknamed “pharma bro”. I just think it’s dumb that allegedly professional news organizations have taken to actually using that moniker.)

Here’s Shkreli’s Facebook post:

Shkreli

This is what is immediately clear about that post. 1) It has absurd premises. 2) His offer is absurd. 3) It was posted to his Facebook page, which is run for the sake of being absurd and/or trolling.

None of those things were taken into account by Judge Kiyo Matsumoto. Furthermore, she failed to take into account any of Brandenburg. As a result, she made this incorrect and irresponsible statement:

“This is not protected by the First Amendment,” U.S. District Judge Kiyo Matsumoto said before revoking the $5 million bond. “There’s a risk that somebody may take him up on it.”

Matsumoto had wide latitude to revoke Shkreli’s bail, so it’s perplexing why she would so intentionally spread misinformation. She ought to be embarrassed that she didn’t even pretend she was applying any basic First Amendment test here. This is a Maeghan Maloney-level understanding of free speech rights.

Shkreli’s bail status notwithstanding, if someone wants to show that his Facebook ‘offer’ was not protected speech, they need to apply the three-pronged Brandenburg test – something the judge didn’t do. Did his speech demonstrate 1) intent, 2) imminence, and 3) likelihood of lawless action? I don’t think it showed a single one.

Let’s start with intent. (This can include instances where a person should have reasonably expected his speech would result in lawless action.) Look at the post and how absurd it is at every turn. He said the Clinton Foundation has murdered people. He said he potentially already has Clinton’s DNA. He offered a tiny sum for a huge risk. It’s wildly clear that he isn’t even remotely serious. Even when he responded to someone where he said “I’m serious”, it’s impossible to believe him. He’s a 4chan poster without the anonymity. No reasonable person could believe that this was a real offer.

Next is imminence. How could this possibly result in imminent lawless action? Someone reading that post would have to 1) be in the same area as Clinton, 2) know she was in the same area, 3) know where to find her in the very near future, and 4) have a way to get close to her. It is 100% impossible that Clinton could have been in imminent danger. Even if a person was in the same city as Clinton and knew it, and even if she was in public at the very moment Shkreli made his Facebook post, that person would still have to have a way to get to her and to get access to her. And if they were across town and had to get in their car to drive to a convention center where they had to buy a ticket to get in? You’ve just lost your imminence.

And finally, likelihood. Give me a break. For it to be likely that someone would take him up on this offer, all of the following would have to be true of someone who read his post:

    They would have to be unaware that Shkreli is a dedicated troll.
    They would have to believe he was serious.
    They would have to be motivated by $5,000 per hair that had a follicle.
    They would have to think that more than one follicle was necessary for some reason, and that’s why Shkreli was incentivizing the capture of multiple strands.
    They would have to believe that The Clinton Foundation murdered one or more people.
    They would have to believe that Shkreli had Clinton’s DNA already.
    They would have to be willing to risk their freedom at the least and their life at the most.
    They would have to know where Clinton was and when she could be found in public.
    They would have to be near that location.
    They would have to be able to get near Clinton’s head.

There are two things in that list that are likely. One, people actually do think the Clintons have murdered people, so it’s not a stretch to say there are probably people who think their foundation has been complicit in killing. Two, I’m sure Clinton’s tour schedule has been published somewhere. But other than that? You could argue that it’d be possible to yank a hair from her head during some fan photograph session, but I don’t imagine that would go unnoticed by her Secret Service detail.

Martin Shkreli’s Facebook post fails every single part of the Brandenburg test. Every. Single. Part. It’s not even a close call that what he said was entirely protected speech – at least outside a bail hearing. And, once again, that’s what makes this so perplexing. Judge Matsumoto didn’t need to make up an incoherent First Amendment claim in order to justify revoking bail. She could have just done it. She ought to be embarrassed at her actions on the bench.

Judge rules homeless people have rights, people lose their minds

A federal judge recently made this excellent ruling:

A Portland, Maine, city ordinance banning people from panhandling in the median strips of roads violates the U.S. Constitution, a federal judge ruled on Wednesday.

The ordinance, which passed in August, prohibited people from loitering in roadways unless they were placing political campaign signs, a distinction that U.S. District Judge George Singal said violated the First Amendment right to free speech.

City officials had argued that increasing numbers of panhandlers in 2012 and 2013 had become a traffic hazard along the city’s roadways. They said the ban was necessary to ensure public safety.

The American Civil Liberties Union of Maine challenged the ban on behalf of two anti-war activists and a panhandler who told the court she collected between $20 and $25 per day from passing motorists.

“The First Amendment protects all of us, no matter what views we hold or how much money we make,” said Zachary Heiden, legal director for the ACLU of Maine, in a statement.

Heiden said that the economic downturn had increased the visibility of panhandlers in Maine and elsewhere.

“These bans haven’t come about because of an increase in accidents,” he said. “What we’re seeing is more people coming to the streets to ask for assistance.”

No one denies that Portland created this ordinance as a direct response to panhandlers. The city certainly made up the increased traffic accidents excuse, but it was surprisingly open with its disdain for the homeless. And that was its downfall: the government cannot restrict one type of speech while allowing another. In this case, the city banned panhandlers from standing on a median but it allowed political activists to use the median to plant signs. Let’s examine that for even a second.

If it’s true that people in medians are a safety hazard, then it follows that it doesn’t really matter whether they’re standing, pacing, or only there briefly. If the median is dangerous, it’s dangerous, and so no one should have access to it outside a crosswalk zone. Given that the city believes it’s perfectly safe for people to be there, even if only briefly, we have a good piece of evidence that the medians aren’t all that dangerous.

One counter to this point is that the sign planters are only temporary. That actually doesn’t address the issue since people are still in the median while cars are going by them, but let’s pretend it does. Even if the brevity of a person’s median visit changes things, we have to ask why the city has road signs in the median. After all, a road sign that says U-turns are illegal or that there’s no right turn on red is just as dangerous as a standing person. Both are obstructions in the median. Both are there to get the attention of drivers. Of course, there have been zero cries to reduce median signage. Funny that, huh?

Given that traffic accidents have not increased significantly in the area – and given the more important fact that traffic accidents haven’t been caused by people standing in medians, anyway – it is utterly clear the city ordinance was just a way to stop people from begging. Since begging is a clear type of speech, the city ordinance was designed to shut up people who express unpopular speech.

To me this is a really clear cut First Amendment issue. People beg, a city doesn’t like it, an ordinance is passed to curb begging and exceptions are made for desired speech like campaign signs. No brainer. Yet when I saw this link posted on Facebook by the local news outlets, nearly every comment was outrage. Part of that is likely selection bias since people tend to comment more frequently on things that make them mad, but it was still pretty overwhelming. Why, all these grifters are living the high life. Homelessness is a glamorous lifestyle for scammers and drunks! And the number of people who don’t know that begging is a form of speech is astounding. The government doesn’t get to tell me what I’m allowed to ask from people. If I want help pushing my car out of the snow or if I’m raising money for a charity or if I just want a piece of gum, no government should be able to stop me. The same goes for people who are asking for money, food, and other items.

The only semi-legit response to this ruling has been people who complain of the homeless people in Portland that walk between the cars when traffic is stopped. Sometimes they get aggressive, they get in the way, and they often leave trash from the things they’re given. None of that, of course, justifies the government denying them their right to beg in the first place. Violating the First Amendment was never an acceptable solution. What the government should have done was 1) ban all access to the medians, 2) enforce jaywalking and other laws, or 3) redesigned their roads to get rid of medians/make them impossible to stand on. I’m sure there are some other options, but only the options along these lines are legal.

Bravo to the judge, I say. Not only did he make the correct ruling, but he barely even bothered to address the fundamental issue of whether or not begging is protected speech. This is great because there was no reason to address it. It was long ago established that begging was a form of speech, just like flag burning or blogging; the issue is fundamental to the First Amendment, not the specifics of this case. The only issue to be addressed here was whether or not Portland violated the speech that is begging. This correct ruling is a victory for everyone.

I’ll miss you, Fifth Amendment

In the Supreme Court’s continued efforts to destroy the Bill of Rights, the Fifth Amendment just took a big hit:

Here are the facts from Salinas v Texas: Two brothers were shot at home in Houston. There were no witnesses—only shotgun shell casings left at the scene. Genovevo Salinas had been at a party at that house the night before the shooting, and police invited him down to the station, where they talked for an hour. They did not arrest him or read him his Miranda warnings. Salinas agreed to give the police his shotgun for testing. Then the cops asked whether the gun would match the shells from the scene of the murder. According to the police, Salinas stopped talking, shuffled his feet, bit his lip, and started to tighten up.

At trial, Salinas did not testify, but prosecutors described his reportedly uncomfortable reaction to the question about his shotgun. Salinas argued this violated his Fifth Amendment rights: He had remained silent, and the Supreme Court had previously made clear that prosecutors can’t bring up a defendant’s refusal to answer the state’s questions. This time around, however, Justice Samuel Alito blithely responded that Salinas was “free to leave” and did not assert his right to remain silent. He was silent. But somehow, without a lawyer, and without being told his rights, he should have affirmatively “invoked” his right to not answer questions.

Political Figure Scalia and Lap Dog Thomas went further and said Salinas didn’t have any right to silence whatsoever because he hadn’t be arrested or detained by police.

This is all very disturbing. As Ken of Popehat tells us, a prosecutor cannot mention a defendant’s decision to remain silent. If we allowed the authorities to get away with such garbage – and we do now – then the right to remain silent wouldn’t, in fact, be a right. It would simply become this thing people try to do in order to protect themselves, but without any success. “I don’t know, fellow jurors, the police said the guy got shifty and uncomfortable when they questioned him. Then he clammed up! Sounds guilty to me.”

(Know why that last part isn’t a good analogy? Because it just fucking happened.)

I had more to say on this matter, but my time is currently limited. I leave you with this excellent piece of advice:

Advice to bad lawyers and people who become Internet famous

Shortly after Matthew Inman of The Oatmeal mocked some shitty website for threatening to sue him for some silly reason, the lawyer for said site of shit, Charles Carreon, went on a rampage. He started saying all sorts of stupid stuff, like that he was going to sue a couple of charities because Inman was raising money for them out of spite for Carreon. This has naturally only given the Internet more reason to hate assholes. Now push has come to shove and a suit has actually been filed against Inman. He sums everything up in his opening statement:

Dear Charles Carreon,

You’re making things worse.

As someone who has had experience with attempts at intimidation via legal shenanigans, I am quite familiar with this line of thinking. I used to often write that my legal opponents, Christopher Maloney and his terrible lawyer Maeghan Maloney, could never make things better. The best they could ever do was not make things worse. By continuing to chirp, they would (and did) only make life all the shittier for themselves. I was entirely right. I think Charles Carreon would do well to understand that.