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PaperclipPerfector  5mo ago (text post)   26696 thread views

Culture War Roundup for the week of December 11, 2023

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sorry, i edited my post so you replied to the pre-edited version so it looks a bit odd. i think the original petitioners made the appeal but i'm not sure if they are addressing just the 14th amendment issue or the 1st amendment issue as well. i've seen in some media reports that trump wants to challenge the 1st amendment issue.

Trump brings up 11 possible issues in his petition for review. Included was the First Amendment Issue

G. The district court ruled that President Trump’s political speech “incited” violence, even though the words he used never advocated violence. Instead, the district court found that President Trump’s supposed intent, and the effect of his words upon certain listeners, sufficed to render his speech unprotected under the First Amendment. Did the district court err in its application of First Amendment standards to President Trump’s speech?

Later, in his opening brief:

The trial court erred in its First Amendment analysis for two reasons. First, it failed to evaluate the words President Trump actually used on January 6th. Second, it expanded the context relevant to a Brandenburg analysis beyond anything recognized in precedent.

Courts must harmonize constitutional provisions. Even if “engage” includes “incite” Section Three can easily be harmonized with First Amendment rights protecting political speech under the Brandenburg standards.

Speech cannot be punished as incitement unless it (1) “advoca[tes] the use of force or of law violation,” (2) is “directed to inciting or producing imminent lawless action,” and (3) is “likely to incite or produce such action.” All three elements must be met: “the speaker’s intent to encourage violence (second factor) and the tendency of his statement to result in violence (third factor) are not enough to forfeit First Amendment protection unless the words used specifically advocated the use of violence….”

Thus, a court must evaluate the content, form, and context of speech.” Foremost is the objective content of the speech— where speech is protected, “its setting, or context, [can] not render it unprotected.” Intent is important, but only as an additional hurdle, not as a substitute for the required focus on the words themselves; tests focusing on a speaker’s intent or the effect on listeners—rather than the speaker’s words—are prohibited.

Despite this clear precedent, the trial court eschewed meaningful analysis of the objective meaning of President Trump’s words on January 6th. President Trump’s words were not as incendiary as language the Supreme Court has already protected as a matter of law. As a D.C. Circuit judge remarked last year, “you just print out the [President’s January 6] speech…and read the words…it doesn’t look like it would satisfy the [Brandenburg] standard.

On January 6th, President Trump called for protesting “peacefully and patriotically,” to “support our Capitol Police and law enforcement,” to “[s]tay peaceful,” and to “remain peaceful.” This patently fails to meet the first element of Brandenburg.

The trial court nonetheless relied on years of speech that long preceded President Trump’s January 6th speech. This broke radically with First Amendment jurisprudence and created a blatant double standard. While acknowledging the “prevalence of martial language in the political arena”—including “calling on supporters to ‘fight’ and ‘fight like hell,’” as Trump did—the trial court still argued that such standard political rhetoric was different for Trump because it “ignores both the significant history of Trump’s relationship with political violence and the noted escalation in Trump’s rhetoric in the lead up to, and on, January 6, 2021.” It concocted a radical new legal rule: in determining whether a defendant had the specific intent required by Brandenburg, courts may consider any speech ever uttered by the defendant, including to distinct audiences.

For this enormous expansion of the context permitted in a Brandenburg analysis, the trial court cited a single line of dicta in a Supreme Court case. That case held only that Brandenburg’s imminence requirement was not satisfied; it did not analyze specific intent and or hold that a speaker’s past speech, to distinct audiences, constituted incitement. No court has so held.

Applying this radical test, the trial court held that in determining specific intent for most speakers, we should examine the speech in the narrow context in which it was made and afford it the traditional protections—but for Trump, we should examine a curated compilation of speech going back years to decipher a hidden meaning. This runs counter to Wisconsin Right to Life’s injunction against an inquiry that leads to the “bizarre result” that what is “protected speech for one speaker” can lead to “criminal penalties for another.” Simply put, the trial court misapplied Brandenburg requiring reversal.

It's a crapshoot whether the Colorado Supreme Court rules for or against Trump on this issue, because it's a charged political question and an all-Democratic court. But it should be a 7-2 bitchslap (Sotomayor and Jackson in dissent) from SCOTUS at worst. If SCOTUS goes against Trump on this, the First Amendment is dead.

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