Maybe it would be therapeutic for January 6 to be officially declared “Trump Derangement Victims Day,” in honor of all the otherwise sane and reasonable Americans who were driven to fear, loathing and madness by the very exitsnace of Donald J. Trump. The villains who spread this destructive contagion are too many to list, although our lame duck, dying brain POTUS just awarded several of them citizen honors. Meanwhile, if we had such a holiday, those unfortunate sufferers could use the day therapeutically, and let all of their hate out like a primal scream.
I came to this conclusion after reading the following yesterday on a legal blog that I usually admire:
“There are arguments to be made that many who participated in the insurrection of January 6, 2021 thought they were being patriots defending a nation from a stolen election, even though it was a nonsensical lie fed to the willingly delusional by an amoral narcissist who wasn’t strong enough to endure the humiliation of failure. There are arguments to be made that some sentences imposed on J6 insurrectionists were excessive, even though capital police were beaten and bloodied. But there are no arguments that January 6th didn’t happen as it was seen, experienced and suffered that day, as Trump gleefully watched. Yet here we are, Trump re-elected and promising to pardon or grant clemency to his Hallelujah chorus. Here we are, Trump re-elected and urging the jailing of the January 6th House commission for prosecuting him too well, pretending that most of his own administration’s testimony against him didn’t exist or was somehow the result of tampering by then-Congresswoman Liz Cheney, of the radically progressive Cheney clan. Here we are, Trump re-elected as the former vice president acknowledges that the president demanded he violate the Constitution or be hung by Trump’s most violent sycophants…As his own Republican toadies scampered for cover and condemned his call to “fight like hell” that brought the worst of his followers to the second storming of the Capital, Trump relished in the glory of people willing to kill, or die, for him, not because he cared a whit for any of them but because he cared too much for himself…if you have chosen fantasy over reality, and want desperately enough to believe in the absurd excuses constructed around January 6th, so be it. Time will judge Trump’s administration. Time will judge Trump, the vulgar, deceitful, amoral, narcissistic ignoramus. But January 6th happened.
Yikes.
I could tick off the many untruths and distortions in that screed, beginning with the parroting of the Axis Big Lie that the 1/6/21 riot at the Capitol was an “insurrection.” So could you. I won’t, for the same reason I won’t mock a Down Syndrome child whom I pass on the sidewalk. The writer is, when not in the throes of a Trump-Hate meltdown, an excellent lawyer and an astute analyst of legal affairs. Surely he knows, when his brain isn’t over-heated, that that chaotic, unplanned riot was no “insurrection,” just as he knows that it’s ludicrous to treat “fight like hell”as a call to violence when that use of the word “fight” has been part of accepted and well-understood political rhetoric for centuries. He also knows, as a lawyer who is usually astute in legal ethics matters, that the J6 committee’s investigation was rigged and a purely partisan weapon deployed by Nancy Pelosi, and that Cheney did tamper with at least one witness.
I decided not to attach his name to this embarrassing post, because its value is in the fact that anyone with his usual values and intellectual abilities would consider it publishable. This is what the eight years of unrestrained anti-Trump propaganda has done to many good people, many of them my friends, relatives, and respected colleagues. It is a tragedy, and one that has scarred our nation. I hope, without much hope, that the damage won’t be permanent, either to the victims or the United States of America.
Ethics Alarms 
You are kinder than I would’ve been. There are just some things you can’t come all the way back from, and that screed is one of them.
Even if Trump is all the undesirable things he attributes to him (attributes that you have pointed out many times, Jack, which are common among national leaders), it does not make Trump’s comparatively anodyne comments on J6th fomenting a revolution or “insurrection.”
This person has allowed the events surrounding Trump, and perhaps Trump himself, to break his reason into bits too tiny to see with an electron microscope. It will surely infect the rest of his commentary sooner rather than later. We have seen this many times.
Yeah, I saw this post too. I’m glad you covered it; this “blogger” definitely doesn’t like Trump as they have written many unflattering remarks every time Trump is mentioned in their posts. I think TDS is an appropriate diagnosis.
As someone who I’m sure you have diagnosed as suffering from TDS, I’ll bite:
“…it’s ludicrous to treat ‘fight like hell’ as a call to violence when that use of the word ‘fight’ has been part of accepted and well-understood political rhetoric for centuries.”
Just because his statement to “fight like hell” MIGHT not have been intended to incite a riot, the fact is that it DID cause a destructive and lethal riot. Cause and effect. It’s disingenuous to imply that SAYING “fight like hell” to a crowd primed as those people were isn’t the same as yelling “Fire!” in a crowded theater.
but what if there actually is a fire in the crowded theater? Isn’t it then your duty to point this out?
First off, your user name makes me think of an atoll in the Indian Ocean (fond memories of my visit) 🙂 Second, it is legal to yell “fire” in a crowded theater. It is a widely held misconception that it is illegal. BTW I know you were hoping for proe to comment, but I couldn’t resist.
Well, my user name has a bit of a history, but yes it actually is from the Indian Ocean atoll, which was a major U.S. military base.
About 10 or 15 years ago I wanted to dip my toe into Facebook but didn’t really want to use my real name (for reasons that escape me now), so I chose a name familiar to me from military reading.
As it turned out I only used Facebook for a couple of games, which I’ve long since quit, and as a nom-de-plume here. But it does come in handy every so often when a website wants me to provide a login.
Now, if I only monitored the email account associated with it oftener than twice a year……
p.s. And yes, as prescribed in the rules, Jack does have my identity.
I have a few “gentle” questions about the position that you have taken.
1. What is the legal standard (e.g., test) for inciting violence in the US?
2. You mention that the riot was “… destructive and lethal…” How destructive? And how lethal? (please provide specifics such as casualty counts)
3. What constitutes a “… crowd primed…”? How is that determinable considering that most of those involved at the start of the riot were at the Capitol and not President Trump’s speech?
4. Is it illegal to yell, “fire” in a crowded theater? If so, what case set that precedence?
Thank you for your indulgence.
Thank you for the civility of your questions. I would like to say, first, that I am not only not a lawyer but I am also not as learned (in many things) as many/most of the commenters on this blog. I would also like to say that my comment was based on logic (flawed though it may be, although it seems logical to me). Also, I’m not specifying illegality, just that words among other things have consequences. But anyway I have done some research. So, one at a time:
1. What is the legal standard (e.g., test) for inciting violence in the US?
Brandenburg, of course. The test determined that the government may prohibit speech advocating the use of force or crime if the speech satisfies both elements of the two-part test:
A. The speech is “directed to inciting or producing imminent lawless action,” AND
B. The speech is “likely to incite or produce such action.”
(From the Foundation for Individual Rights and Expression)
Incitement — speech that is both “directed to inciting or producing imminent lawless action and is likely to incite or produce such action” — is unprotected by the First Amendment.
The standard comes from the Supreme Court’s 1969 decision in Brandenburg v. Ohio, a First Amendment challenge to the arrest of Ku Klux Klan members under an Ohio criminal syndicalism law. Journalists captured footage of the armed Klansmen using slurs against black and Jewish people. The Klansmen stated there “might have to be some revengeance taken” against government officials and announced a march on Congress on the Fourth of July. The Court struck down the Ohio law because the statute “purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action.”
As with true threats and intimidation, determining whether speech constitutes incitement requires careful consideration of contextual circumstances. Mere advocacy of lawbreaking or violence remains protected speech as long as it is not intended to and likely to provoke immediate unlawful action.
2. You mention that the riot was “… destructive and lethal…” How destructive? And how lethal? (please provide specifics such as casualty counts)
AND
3. What constitutes a “… crowd primed…”? How is that determinable considering that most of those involved at the start of the riot were at the Capitol and not President Trump’s speech?
So, well, 2 at a time. What report of the events would you consider unbiased? I can’t answer this question without knowing your answer to this.
4. Is it illegal to yell, “fire” in a crowded theater? If so, what case set that precedence?
Of course you know that it is not illegal.
(From Wikipedia) (also see Schenk and Justice Holmes)
The utterance of “fire!” in and of itself is not generally illegal within the United States: “sometimes you could yell ‘fire’ in a crowded theater without facing punishment. The theater may actually be on fire. Or you may reasonably believe that the theater is on fire.” Furthermore, within the doctrine of first amendment protected free speech within the United States, yelling “fire!” as speech is not itself the legally problematic event, but rather, “there are scenarios in which intentionally lying about a fire in a crowded theater and causing a stampede might lead to a disorderly conduct citation or similar charge.”
Sorry for not getting back to you sooner, but the last few days have been rather hectic.
Starting with 1… yes, Brandenburg! When we look at historic cases that use the Brandenburg test in particular “…NAACP v. Claiborne Hardware Co . (1982), Charles Evers threatened violence against those who refused to boycott white businesses. The Supreme Court applied the Brandenburg test and found that the speech was protected : ‘Strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases. An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech’” (retrieved from https://www.law.cornell.edu/wex/brandenburg_test).
Now I am sure that one could argue that in Trump’s case, he did incite lawless action, but then timing comes into play. Trump was still speaking when rioters started to enter the Capitol. A court would have to find that Trump met the conditions of Brandenburg and the timing was either inconsequential or the actions allowed for participants to travel from earshot of his speech to the Capitol. Moreover, it would have to satisfy reasonable doubt, so it would be necessary to show Trump had intent and that those who went to the Capitol did not have prior intent. One of the keys is “court,” which is not either one of us belongs to (not to mention Trump was not charged).
With 2, we have conclusive evidence (DoJ) that only one person was killed (Ashli Babbitt). So was the riot “lethal?” Sure, but only for one individual (note the coroner found that Siknick [sp?] died from natural causes). Regarding “destructive” we could look at repair costs. The riot was “destructive,” but given the subjectiveness of the word, if a carpet had become heavily soiled one could argue that constituted destruction.
I won’t touch on 3 since you did not respond to my question.
In regards to 4, as you pointed out, the legality or illegality of “yelling fire in a crowded theater” is based on context. So just merely yelling “fire” is protected speech, but not all speech is protected in every situation, there is situationally dependent speech.
Please watch this legal seminar video and learn some more about the Constitution…
Thanks
The term used here is “moral luck.” Using standard political rhetoric doesn’t become unethical and definitely not criminal because of someone’s reaction to it after the fact. Chuck Schumer, for example, told two SCOTUS justices that they would be punished if they voted against abortion rights. If one of them had been assassinated a day later, there is no legal breach that can be attributed to Schumer, even though his rhetoric was NOT common. Justice Holmes’ analogy is not applicable: he described a deliberate attempt to start a panic and riot in a theater that is NOT on fire and the speaker knows it. Trump used the term “fight” while also using the word “peacefully.” Anyone misunderstanding his intent was doing so deliberately, or was not paying attention.
I assume you are talking about the unarmed white female service member who was shot by the Capitol police officer who had a history of improper firearm use or the woman that was beaten by the female Capitol police officer with a metal baton when she had a medical emergency and fell and not attended to when you say lethal.
You cannot be meaning the officer who died from an aneurism the next day in which the coroner had ruled was not a result of ant blunt force trauma or the suicides by other officers that took place many months later.
To be fair, the Axis disinformation on this latter point has been so widespread and pernicious that I assume the majority of Americans think it’s true. Biden gave the officer’s body a hero’s viewing at the Capitol, one of his more disgusting bits of partisan gaslighting. And to be fair to HIM, he was acting in part on the false story published by the New York Times, which I’m sure “A Friend” will claim was an honest mistake.
“Just because his statement to “fight like hell” MIGHT not have been intended to incite a riot, the fact is that it DID cause a destructive and lethal riot. Cause and effect.”
In addition to the Moral Luck fallacy that Jack already pointed out, I’d like to point out that this is an excellent example of the post hoc ergo propter hoc fallacy. Just because one event happens after another does not imply that the chronologically-first event was definitely the cause of the second.
You can’t discount the possibility that the J6 Riot might have still happened even if President Trump had said nothing whatsoever that day–not unless you can positively connect that the leaders of the riot were directly responding to Trump’s speech.
And it bears repeating: Trump literally used the word “peacefully” in his “fight-like hell” speech, so true cause-and-effect would require the existence of some sort of pre-planned code-phrasing to allow Trump to give orders surreptitiously. Occam’s Razor begs to disagree.
–Dwayne
I know a handful of people who are lawyers and otherwise able people who’ve become totally Trump deranged. I just don’t understand this phenomenon. “What’s wrong with these people?” These people are outraged by Trump’s existence but are okay with shameless grifters like Chuck Schumer, Bill Clinton, John Kerry, Al Gore, Hillary Clinton, Liz Cheney, John Brennan, Jim Clapper, and so many others? They’re all wonderful public servants but Trump is a criminal? I just don’t get it. What world have they been living in?