Dan Siegel Law Original

Holding Trump and His Rioters Accountable Can — and Must — Be Done Constitutionally

Reconciliation that is an echo of the appeasement that doomed Reconstruction is unacceptable, but so is allowing social media corporations to determine what speech is allowed in the what amounts to the new 'public square.'
The United States Capitol Building in Washington, D.C. was breached by thousands of protesters during a “Stop The Steal” rally January 6, 2021 in support of President Donald Trump . Demonstrators used chemical irritants, weapons and other materials to breach the interior of the building while the Senate was certifying electoral college votes. Five people died, including a Capitol Police officer who was allegedly beaten to death by protestors. (Washington, D.C.) Photo by AP [STAR MAX File]

“The dream of justice for all will be deferred no longer.”

Joe Biden, 1/20/2021

“They say time heals everything. But I’m still waiting.”

Natalie Maines (The Chicks), Not Ready to Make Nice

By Dan Siegel / Original to ScheerPost

President Biden wants to unify the country while extending justice to all. Some of the newly cooperative Trump enablers are eager for reconciliation and a return to business as usual. They will join in a bipartisan coalition with Biden to ensure that nothing changes. If they succeed, justice will remain deferred, Biden-Harris will be a one-term administration, and America will return to its historic white supremacist domination.

Biden must hold the far right accountable for its lawlessness. The members of the mob that broke into the Capitol on January 6, attacking police officers, destroying and stealing property, and plotting to kidnap or harm members of Congress should be prosecuted and punished to hold them accountable and discourage future criminality.

Trump, his son, and Giuliani should be prosecuted for inciting a riot. Early evidence suggests that members of the Proud Boys, Oath Keepers, and Three Percenters can be charged with conspiring to commit a number of crimes. All of this can be done without violating the defendants’ First Amendment speech and protest rights, as I will explain in detail further on. 

Still, politicians must be cautious about violating the free speech of right-wing activists by enacting prohibitions that can be used against anyone who advocates against government policy. During the 20th century government prosecutors targeted anti-draft advocates during World War I, communists and their supporters after World War II, and the 1960s movements for Black Liberation and against the Vietnam War. Hard-fought battles eventually established legal principles protecting unpopular advocacy that must be maintained despite the temptation to throw all the Proud Boys into prison and leave them there.

Complicating the speech debate is the implicit contracting out of authority to regulate what people can say online to the huge internet service providers including Twitter, Facebook, and YouTube. Many were at least relieved when Twitter finally shut Trump down. But given the power of these corporations over the news and information available to tens of millions of people, the US needs to reconsider whether unaccountable huge corporations and their owners should be allowed to usurp the authority of the courts.

America’s own history provides the pattern that will be broken or reinforced over the next few years. The period after the Civil War demonstrates the impact of the strategy of reconciliation without accountability. At the beginning of the war, the North was split between those whose only stated goal was to preserve the Union and those demanding that the government emphasize the abolition of slavery.

The war was almost two years old when Lincoln finally agreed to redefine its goals to emphasize abolition, motivated at least in part by the military defeats suffered by the North in 1861 and 1862. Frederick Douglass and other abolitionists demanded that Lincoln allow free Blacks and runaway slaves to enlist in the war effort — and when Lincoln agreed, 200,000 enlisted. Lincoln issued the Emancipation Proclamation on January 1, 1863, and by the time 600,000 had died on both sides at the Battle of Gettysburg in July 1865, the war was effectively over. 

However, while the Union won the war, the Confederacy won the peace.

Lincoln and the Republican Party championed Reconstruction and the passage of the Thirteenth, Fourteen, and Fifteen Amendments to the Constitution, forbidding slavery, guaranteeing due process and equal protection of the laws, and establishing the right to vote. But Lincoln’s assassination on April 14, 1865 elevated Vice-President Andrew Johnson, the pro-slavery Tennessean, to the presidency. The Republicans had put Johnson on the ticket as a gesture to the border states to insure Lincoln’s re-election. Although he opposed secession, Johnson was a committed white supremacist and defender of “states’ rights” — shorthand for the South’s core argument against national abolition.

Congress was split over how to treat the traitors who waged war to protect their ability to own other human beings. Lincoln and, later, President Ulysses S. Grant supported Blacks’ rights to vote and run for office in the South. But the white majority, north and south, backed policies of reconciliation and appeasement. Confederate soldiers were pardoned, their officers honored, and plantations restored to former slave owners. 

Perhaps civil wars are always like this, but it has always seemed strangely significant that the most important generals for both the Union and the Confederacy were educated together at the United States Military Academy at West Point. The shared history of Lee, Grant, and so many others gave the terrible war a bit of the flavor of the Army-Navy football game and may partially explain why the North and South prioritized reconciliation over the rights of the freed slaves. 

By the late 1860s, white mobs regularly attacked southern Blacks who asserted their rights while the US military largely stood by. Horrific massacres occurred in Memphis, New Orleans, and elsewhere. Reconstruction was quickly replaced by the bondage of the Jim Crow system of overt segregation. Blacks who resisted working as sharecroppers on their old plantations and insisted on their right to vote faced terror and lynching well into the 20th century. There were 230 recorded lynchings in 1892 alone.

Illustration depicting an 1866 massacre of Blacks in Memphis, TN, published in the May 26, 1866 Harper’s Weekly.

The failure to hold the South accountable for the Civil War led directly to the white supremacist movement the US is facing today. The battle to finally eliminate statutes of Confederate military leaders and rename military bases, college buildings, and even streets reflects America’s failure to reach a verdict on the Civil War. In a nation where there are still 1700 public monuments to the Confederacy, is it surprising that modern white supremacists carried Confederate flags at Charlottesville and even inside the US Capitol?

Finally ending the hold of white supremacy over the United States will require consistent efforts to insure equal rights in the economic, political, and social spheres of society. The progress that has been made since the 1960s is reflected in the relatively weaker hold of racist ideology among younger, better-educated whites, especially those whose school and work experience occurs in integrated settings. As the Democratic Party prepares for the 2022 and 2024 elections, it must learn to use social and mass media to bring a message of unity to every corner of the country.

The activities of the far right raise significant free speech issues but none that would bar the prosecution of Trump and others for inciting violence on November 6. The standards that restrict government suppression of speech were developed in the anti-communist Smith Act cases and the prosecution of right-wing militants in the 1960s. 

In 1957, the US Supreme Court effectively ended the McCarthy era when it ruled in Yates v. United States that advocating a doctrine that in the abstract taught the necessity for the violent overthrow of the government could not be prosecuted under the Smith Act consistent with the First Amendment. Only specific advocacy of action calculated to incite people to overthrow the government now or at some point in the future may be punished.

The issue was further clarified in 1969 when the Supreme Court overturned the conviction of a Ku Klux Klan leader convicted of violating Ohio’s criminal syndicalism law by advocating the use of violence to accomplish political, social, or economic change, specifically by attacks against Blacks and Jews. In Brandenburg v. Ohio the Court ruled that such advocacy cannot be punished unless “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” 

Application of the Court’s standards to the events of January 6 should be clear. The two related issues to be resolved in potential prosecutions of Trump, Trump Jr., and Giuliani for inciting the mob that attacked the Capitol are:

  1. Did the speakers intend to incite violence?
  2. Was the situation ripe for violence to occur? In other words, you cannot be convicted for throwing a lighted match into a bucket of water but can be for throwing the same match into a bucket of gasoline. 

Issues of intent are hard to prove, especially when the language is ambiguous. When Trump called on the crowd to march on the Capitol, he urged it to be “peaceful,” perhaps reflecting the advice of one of his many legal advisers. But Trump’s speech followed Giuliani’s call for “trial by combat.” A successful prosecution would require proving that he understood the mood of the crowd and the readiness of the Proud Boys, Oath Keepers, and others to make a violent attack on the Capitol. 

Regulation of speech cannot ignore the increased role of private corporations in deciding what people can see and hear. The First Amendment restricts government limitations on speech. Corporations, including television and radio stations and newspapers, are not so regulated. Section 230 of the Communications Decency Act raises the bar further by immunizing internet service providers (ISPs) from lawsuits, such as claims for defamation, based upon what their users post online. (Crucially, the law and the courts’ interpretations of it have extended this protection far beyond the traditional definition of an ISP to include basically any online platform or service that publishes third-party content.) The law has been interpreted by the courts to also shield these corporations from suit based upon what they choose to prohibit on their sites. 

If there truly were a free marketplace of ideas, we would have a variety of media for the publication of almost anyone’s ideas. But there is not. Consolidation has wiped out hundreds of daily newspapers to the point that most US cities no longer have papers dedicated to reporting on the actions of local government or other concerns. The giant networks have taken monopoly control over broadcast television and radio. Facebook, Twitter, and YouTube dominate the internet. Twitter could and did cancel Trump’s account, making it impossible for the President of the United States to effectively communicate his views to the public. These corporations make up their own standards for publication, unconstrained by legal principles.

Some level of regulation is necessary to protect the availability of diverse speech online. In PruneYard Shopping Center v. Robins, the California Supreme Court ruled in 1979 that because shopping malls had become the “town squares” of the 20th century, the expansive free speech provision of the California Constitution required the private owner to accommodate speech activity. Similar reasoning applies to the dominant corporate social media platforms today. 

The 1949 “Fairness Doctrine” required radio and television stations “to present controversial issues of public importance and to do so in a manner that was honest, equitable, and balanced” before the Federal Communications Commission unfortunately rescinded it in 1987. Stations were required to comply with the doctrine by allowing equal time to speakers on various sides of issues and political campaigns.

Similar principles demand that control over what speech can be forbidden on Facebook or Twitter should be taken from the giant corporations that control the internet. How such alternate regulation should be accomplished will require extensive discussion.

Dan Siegel
Dan Siegel

Dan Siegel is a civil rights attorney in Oakland.

Copyright 2020 Dan Siegel

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