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PaperclipPerfector  4mo ago (text post)   29077 thread views

Culture War Roundup for the week of December 18, 2023

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The Colorado Supreme Court holds:

A majority of the court holds that President Trump is disqualified from holding the office of President under Section Three of the Fourteenth Amendment to the United States Constitution. Because he is disqualified, it would be a wrongful act under the Election Code for the Colorado Secretary of State to list him as a candidate on the presidential primary ballot. The court stays its ruling until January 4, 2024, subject to any further appellate proceedings.

[recent related discussion, slightly older]

The Colorado Presidential Primary is scheduled for March 5th, for both parties. As the decision notes, January 4, 2024 is "the day before the Secretary’s deadline to certify the content of the presidential primary ballot)"; while the matter is open to further stay should federal courts intervene, such an intervention would itself determine at least the state presidential primary.

How are the procedural protections? From the dissent:

As President Trump, argues and the Electors do not contest, section 1-1-113’s procedures do not provide common tools for complex fact-finding: preliminary evidentiary or pre-trial motions hearings, subpoena powers, basic discovery, depositions, and time for disclosure of witnesses and exhibits. This same concern was raised in Frazier; the then-Secretary argued that “it is impossible to fully litigate a complex constitutional issue within days or weeks, as is typical of a section 1-1-113 proceeding.”...

Despite clear requirements, the district court did not follow section 1-4-1204’s statutory timeline for section 1-1-113 claims. The proceeding below involved two delays that, respectively, violated (1) the requirement that the merits hearing be held within five days of the challenge being lodged, and (2) the requirement that the district court issue its order within forty-eight hours of the merits hearing.

And the other dissent:

Thus, based on its interpretation of Section Three, our court sanctions these makeshift proceedings employed by the district court below—which lacked basic discovery, the ability to subpoena documents and compel witnesses, workable timeframes to adequately investigate and develop defenses, and the opportunity for a fair trial—to adjudicate a federal constitutional claim (a complicated one at that) masquerading as a run-of-the-mill state Election Code claim...

and

Even with the unauthorized statutory alterations made by the district court, the aggressive deadlines and procedures used nevertheless stripped the proceedings of many basic protections that normally accompany a civil trial, never mind a criminal trial. There was no basic discovery, no ability to subpoena documents and compel witnesses, no workable timeframes to adequately investigate and develop defenses, and no final resolution of many legal issues affecting the court’s power to decide the Electors’ claim before the hearing on the merits.

There was no fair trial either: President Trump was not offered the opportunity to request a jury of his peers; experts opined about some of the facts surrounding the January 6 incident and theorized about the law, including as it relates to the interpretation and application of the Fourteenth Amendment generally and Section Three specifically; and the court received and considered a partial congressional report, the admissibility of which is not beyond reproach.

Did the Colorado Supreme Court provide a more serious and deep analysis of the First Amendment jurisprudence, at least?

The district court also credited the testimony of Professor Peter Simi, a professor of sociology at Chapman University, whom it had “qualified . . . as an expert in political extremism, including how extremists communicate, and how the events leading up to and including the January 6 attack relate to longstanding patterns of behavior and communication by political extremists.”

He testified, according to the court’s summary, that (1) “violent far-right extremists understood that [President] Trump’s calls to ‘fight,’ which most politicians would mean only symbolically, were, when spoken by [President] Trump, literal calls to violence by these groups, while [President] Trump’s statements negating that sentiment were insincere and existed to obfuscate and create plausible deniability,”

There are interpretations here other than that of the Russell Conjugation: that stochastic terrorism is limited to this tiny portion of space, or perhaps that shucks there just hasn't ever been some opportunity to worry about it ever before and they're tots going to consistently apply this across the political spectrum in the future. They are not particularly persuasive to me, from this expert.

Perhaps more damning, this is what the majority found a useful one to highlight : a sociology professor who has been playing this tune since 2017.

If you put a gun to my head, I'd bet that this is overturned, or stayed until moot. But that's not a metaphor I pick from dissimilarity.

Did the Colorado Supreme Court provide a more serious and deep analysis of the First Amendment jurisprudence, at least? "The district court also credited the testimony of Professor Peter Simi, a professor of sociology at Chapman University ...

The Court's discussion of the First Amendment issue runs from page 16 to page 32 of the opinion. I don’t know if that analysis is correct, but it is disingenuous to imply, as you do, that it nothing more than a citatiin to the testimony of a single witness.

116-132, but it's also over 2100 words, and nearly 13,000 characters. I quoted from the end of it.

I can give more examples -- the reference to Schneck is another low-point -- but I didn't think I needed to fisk the entire thing lest people think Colorado judges are short-tongued.

Right, 116-132.

Nevertheless, your implication that the Court gave short shrift to the First Amendment issue is, again, disingenuous.

Why is the citation to Schenck a low point? It is cited only for the principle of "the importance of context in holding that “the character of every act depends upon the circumstances in which it is done.” They didn't cite it for its holding. Courts do that all the time; hence the common explanatory note, "overruled on other grounds."

To be clear, I am extremely skeptical that Trump's speech was not protected under the First Amendment, because incitement is a very narrow exception (though I note that none of the dissenters raised that issue, unless I missed it). But your criticisms of the Colorado court's First Amendment analysis are completely unconvincing.

Why is the citation to Schenck a low point? It is cited only for the principle of "the importance of context in holding that “the character of every act depends upon the circumstances in which it is done.”

It's exceptionally unclear if that principle remains good law, not just in the awkward question of what extent Schenck was overruled (technically Brandenburg only explicitly overruled Whitney v. California), but in the sense that exact and literal text is part of the central holding of Schenck. It might get read out less often, but it's as core the famous line:

We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.

More recent cases have been highly limited in the extent they have accepted such expansive reads, but even in the specific context of Brandenburg and Davis that cry for Circumstances was recognized as permitting widely restrictive limits on speech based on whatever Current Thing was, given the extent WWI and WWII and anti-communism had twisted past precedent.

But more deeply than that, if you're trying to write an opinion on a controversial subject, and you've got a claim you think blindingly obvious, you should be able to pick a precedent that isn't a byword for bad and motivated law, whose central holding applied broadly to speech we generally permit, and who you don't have to worry about (and fail to!) note as overruled on other grounds.

  1. That specific language from Schenck remains good law. See, eg, Boim v. Fulton County School Dist., 494 F. 3d 978, 984 (11th Circuit 2007); Satawa v. Macomb County Road Com'n, 689 F. 3d 506,517 (6th Circuit 2012).
  2. Your entire criticism seems to be that they cited Schenck, but that is a meaningless claim,because the court clearly did not rely on Schenck.
  3. More importantly, I agree that their free speech analysis is incorrect, but not because they cited Schenck, and certainly not because they engaged in only a limited discussion of the issue, as you falsely implied.

If only you applied this same level of scrutiny to the Colorado judges as the poster you're criticizing.

  1. As I said, " I am extremely skeptical that Trump's speech was not protected under the First Amendment, because incitement is a very narrow exception."

  2. What level of scrutiny do you imagine that to be? OP's claim (which was that the First Amendment analysis by the court was superficial) does not pass even a minimal level of scrutiny.

"the character of every act depends upon the circumstances in which it is done."

Sure, and Schenck itself holds that the circumstances of distributing anti-draft pamphlets yields a character akin to shouting "fire" in a crowded theater. I don't find this line of logic very convincing because some partisan actors will come along and deem anything "un-American" (flag burning?) as inherently insurrectionist.

Subverting American policy for financial gain of your son is insurrectionist behavior therefore Biden is ineligible to run.

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