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naraburns  nihil supernum  1yr ago (text post)   34503 thread views

Culture War Roundup for the week of March 6, 2023

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A bit meta - but why is nobody here talking about - congressional hearings about twitter files, new January 6th footage - those look like a prime culture war fodder. And yet it is suspiciously silent here? Personally my reason is that I can't just wrap my head around what is going on really.

I’ll share something about the J6 footage. The video shows that the “shaman” Jacob Chansly was a non-violent protestor on good terms with the police whom guided him through the corridors of the capitol. He is on video praying for the police and telling everyone to leave peacefully after reading Trump’s tweet. Also persuasive is the fact that only 106 officers were injured, whereas 180+ officers were injured when the progressive insurrectionists in 2020 attempted to seize the White House (burning down a piece of history in the process, a church of God). Remember that the media then laughed because Trump was placed in a safe location.

This only interests me a little though. What’s more interesting and scary is talking to an older relative who refuses to even watch the tape. Why? Because the news pushed stories to his iPhone immediately after Tucker’s monologue (which has 4mil views only on YouTube plus everyone who watches JRE plus etc). The News pushed debunks, or perhaps prebunks, in an attempt to inoculate their subjects viewers from ever being persuaded by Tucker’s video. None of it had anything that even vaguely amounts to a debunking. If Chansley was indeed violent, it should be as trivial as publishing the clip. The shaman didn’t exactly blend in with the crowd. But in fact, they can’t debunk it, so they just attack Tucker with persuasive linguistic programming.

I also noticed how insanely uninformed my relative was on what happened in the Greater Insurrection of 2020. His entire memory of the event is “Trump dispersed peaceful protestors for a photo op”. The media is so crafty and so consistent in their messaging, it leads to such resilient disinformation. What, the President shouldn’t be able to speak a few miles from his house, about the piece of history insurrectionist burned down? That’s clearly insane.

If Chansley was indeed violent

Violence is not an element of the crime Chansley pleaded guilty to, obstruction of an official proceeding. So it is irrelevant whether he was violent.

  • -14

In other words, for an extremely broad offense that was created to use against people interfering with trials and has never been used against protesters before, despite it being common for protesters to disrupt congress or other government proceedings.

https://archive.ph/XeEi2

Congress intended § 1512(c) – which was enacted as part of the Sarbanes-Oxley Act of 2002 – to broaden punishment for document destruction. As the Supreme Court explained in Yates v. United States, this was prompted by revelations of Enron’s massive accounting fraud and of the fact that the company’s outside auditor, Arthur Andersen LLP, “had systematically destroyed potentially incriminating documents.”

There is nothing in the legislative history that supports the notion that Congress enacted § 1512(c)(2) to criminalize the disruption of a Congressional proceeding by persons engaged in a political rally.

While that statute prohibits individuals from “corruptly obstructing” official proceedings, courts have interpreted those terms to include making false statements (see here, here, here and here), encouraging others to do so (here and here), falsifying documents, destroying evidence, thwarting a criminal investigation, or intimidating witnesses in a criminal proceeding.

None of these things happened on Jan. 6.

Further, demonstrators often disrupt congressional proceedings. Here are some examples:

The use of § 1512(c)(2) to prosecute demonstrators is novel. Other than the Jan. 6 cases, no reported cases prosecuted under § 1512(c)(2) since its passage in 2002 have involved a claim that demonstrations that disrupted an official proceeding committed an obstruction offense under § 1512(c)(2).

In other words, for an extremely broad offense that was created to use against people interfering with trials

That is incorrect. 18 U.S. Code § 1515 says:

(a)As used in sections 1512 and 1513 of this title and in this section—

(1)the term “official proceeding” means—

(A)a proceeding before a judge or court of the United States, a United States magistrate judge, a bankruptcy judge, a judge of the United States Tax Court, a special trial judge of the Tax Court, a judge of the United States Court of Federal Claims, or a Federal grand jury;

(B)a proceeding before the Congress;

(C)a proceeding before a Federal Government agency which is authorized by law; or

(D)a proceeding involving the business of insurance whose activities affect interstate commerce before any insurance regulatory official or agency or any agent or examiner appointed by such official or agency to examine the affairs of any person engaged in the business of insurance whose activities affect interstate commerce;

So, it does not apply only to disruption of trials.

There is nothing in the legislative history that supports the notion that Congress enacted § 1512(c)(2) to criminalize the disruption of a Congressional proceeding by persons engaged in a political rally.

Even if that is true (and see below), the problem with that is that under the textualist method of interpreting legislation, legislative history and Congressional intent are largely irrelevant, if the words of a statute are clear:

In statutory interpretation disputes, a court's proper starting point lies in a careful examination of the ordinary meaning and structure of the law itself. Schindler Elevator Corp. v. United States ex rel. Kirk, 563 U.S. 401, 407, 131 S.Ct. 1885, 179 L.Ed.2d 825 (2011). Where, as here, that examination yields a clear answer, judges must stop. Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438, 119 S.Ct. 755, 142 L.Ed.2d 881 (1999). Even those of us who sometimes consult legislative history will never allow it to be used to "muddy" the meaning of "clear statutory language." Milner, 562 U.S. at 572, 131 S.Ct. 1259. Indeed, this Court has repeatedly refused to alter FOIA's plain terms on the strength only of arguments from legislative history.

Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356, 2364 (2019) [Opn by Gorsuch, joined by Roberts, Thomas, Kavanaugh, Alito and Kagan].

And see the LONG discussion of the application of Section 1512(c)(2) to Jan 6 here. Why is the court wrong?

So, it does not apply only to disruption of trials.

That is what I said. It is an extremely broad law that was originally created with the ostensible purpose of stopping stuff like destruction of evidence or intimidation of witnesses, and was previously only applied in that way, but that going by the text can be used to apply severe criminal charges to broad categories of protest activities. Now, if it was applied equally I might be at least somewhat sympathetic to the idea of cracking down on protest in general and pushing all political questions to be settled in the voting booth. But what makes it worse is that it is clearly being applied selectively based on the viewpoint of the protesters, a novel application of a law created because those charging them find the political cause of "Pence shouldn't certify the election results due to supposed evidence of fraud" particularly objectionable.

the problem with that is that under the textualist method of interpreting legislation, legislative history and Congressional intent are largely irrelevant

Your own link admits how absurdly broad the text is:

must be limited for it would otherwise produce "an absurd result that the Congress could not have intended in enacting the statute"). For instance, a person outside the Capitol building protesting legislation while it is under consideration by a congressional committee is surely attempting to "influence" the proceeding, but no one would seriously contend that such an act violates section 1512(c)(2). The same is true of a citizen who emails her congresswoman to urge her to vote against a judicial nominee. The court therefore appreciates the dangers that an unrestrained reading of section 1512(c)(2) would cause.

So how exactly do they distinguish between political activity prohibited by the text of the law that "nobody would seriously contend" actually violates it, and political activity prohibited by the text of the law that gets you years in prison? Well, they think this protest was bad:

Defendants are accused of having, individually and collectively, acted with the purpose "to stop, delay, and hinder the Certification of the Electoral College vote." Indictment ¶ 38. Wearing paramilitary gear, and with some moving in a "stack" formation, id. ¶ 39h–i, Defendants "forcibly storm[ed]" past exterior barricades and law enforcement, id. ¶ 39j, to carry out a planned "operation to interfere with the Certification of the Electoral College vote," id. ¶ 39a. Once inside the Capitol building, some made their way to the Senate wing of the Capitol and "push[ed] against a line of riot police officers guarding the hallway connecting the Rotunda to the Senate," retreating only after officers deployed a chemical spray. Id. ¶¶ 151–154. Others moved toward the House of Representatives. Id. ¶ 156. Some entered with bear spray and assaulted police officers. Id. ¶¶ 164–168. Their alleged conduct was no mere political protest or trespass.

Notice how, for instance, other protesters committing violence renders it "no mere political protest" and serves as justification for applying the law to nonviolent protesters like Chansley. That's sure not the standard that was applied to BLM protesters, including the ones who disrupted "official proceedings" by doing stuff like repeatedly setting that Portland courthouse on fire. But of course the primary determination of how the apply such a broad law isn't even with the court deciding which protests they like and which they don't, it's with those deciding to charge people with it in the first place. Code Pink loved to "obstruct, influence, or impede" Congress, but obviously nobody ever charged them under this law. In fact after writing that sentence I searched and here's an article from 2 weeks ago:

Code Pink protesters disrupt inaugural House China committee hearing

Two Code Pink activists attempted to disrupt the inaugural hearing of a House select committee on the Chinese Communist Party and were escorted out by security officials.

During testimony by former White House National Security Adviser H.R. McMaster, a woman from the pro-China leftist group held up a sign stating, “China is not our enemy,” and began shouting.

The capability of motivated reasoning to come up with reasons why such an overbroad law should apply to your political enemies is more than sufficient. The law should either not exist or at least not be interpreted as applying to cases anything close to this.

I took your claim to be that the law did not apply to the Jan 6 events. But if your claim is instead that it is overbroad, that is a different question. Maybe it is. But note that other courts, in completely different contexts, have rejected that precise argument re this precise law. To quote the case I linked:

The Second Circuit rejected a similar argument in United States v. Thompson , 76 F.3d 442 (2d. Cir. 1996). There, the defendant was convicted of witness tampering in violation of 1512(b)(1), and on appeal argued that " § 1512 violated his First Amendment rights by broadly ‘proscrib[ing] persuasion.’ " Id. at 452. The court rejected that argument, reasoning that "[a] prohibition against corrupt acts is clearly limited to ... constitutionally unprotected and purportedly illicit activity." Id. at 452 (internal quotation marks omitted). "By targeting only such persuasion as is ‘corrupt[ ],’ § 1512(b) does not proscribe lawful or constitutionally protected speech and is not overbroad." Id. ; accord United States v. Shotts , 145 F. 3d 1289, 1300 (11th Cir. 1998) (citing Thompson ); United States v. Brenson , 104 F.3d 1267, 1280 n.6 (11th Cir. 1997) ("A prohibition against corrupt acts does not proscribe constitutionally protected speech and is clearly limited to unprotected activity.").

The Court then observed that the indictment alleged acts intended to disrupt the proceeding, not mere speech.

Moreover:

we have vigorously enforced the requirement that a statute's overbreadth be substantial, not only in an absolute sense, but also relative to the statute's plainly legitimate sweep. See Board of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 485, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989); Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). Invalidation for overbreadth is "`"strong medicine"'" that is not to be "casually employed." Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U.S. 32, 39, 120 S.Ct. 483, 145 L.Ed.2d 451 (1999) (quoting Ferber, 458 U.S., at 769, 102 S.Ct. 3348).

United States v. Williams, 553 US 285, 293 (2008).

Also, "[f]acial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute," Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). Construing the law to not apply to speech, even loud disruptive speech such as the Code Pink one, goes a long way toward addressing potential overbreadth issues.

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