“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.”
…
“Although the Supreme Court has never had the occasion to adjudicate an actual dispute involving a person yelling “fire” in a crowded theater, the Court did at least narrow its “clear and present danger test” in 1969, setting a higher standard for imminent incitement of lawless action.””
“You can’t yell fire in a crowded theater. I’m sure you’ve heard somebody say that before when discussing free speech and limitations on free speech and the First Amendment. Well, it’s actually one of the most widely misunderstood quotes in American law. It’s routinely parroted as the status of why there can be or are limitations on free speech, but it is a big fat myth. I will explain here in just a moment, so stick around.”
…
“the interesting about it is the Schenck case wasn’t about fires, it wasn’t about theaters, it kind of wasn’t even about free speech. It was in a way, but it was really about a guy that was being charged with violations of the Espionage Act because he was a member of the socialist party and he was speaking out against the draft. And the other bizarre thing about why this quote gets attributed to why it’s okay to limit free speech is, the Schenck case, which has now actually been overturned and has been for like 60 years, actually stood for the exact opposite. The Schenck case was applying a pretty large degree of censorship on free speech. That’s why it was overturned is because it was actually found to be completely contrary toward what the First Amendment stood for.
So, the idea that you can’t yell fire in a crowded theater, Justice Holmes was using that as an analogy to simply say that free speech can’t go completely unchecked. And that idea has maintained it’s truth throughout the years. That’s still true. There are limitations on what is considered protected speech and what is not considered protected speech, and that’s a topic for a different video. But it’s just always been interesting to me that this quote, which is just dicta, it’s not the holding of the case, it’s not really the law of the land, and it’s not Justice Holmes saying that’s what the law of the land should be, has somehow withstood the test of time and is still, to this day”
“the Texas Supreme Court handed down an extraordinary order saving Robert Roberson from execution — but potentially not for very long.
Roberson was convicted in 2003 of murdering his daughter on the theory that she died of “shaken baby syndrome.” However, in an extraordinary turn of events, it now appears likely that Roberson is innocent. Not only that, but it is far from clear that his daughter was even a victim of murder in the first place.
One reason to doubt the conviction is that modern science looks at shaken baby syndrome with increasing skepticism. More importantly, however, the evidence in Roberson’s case suggests that his poor girl actually died from a combination of pneumonia and medications that should never have been prescribed to such a young patient, and that the injuries that a 2003 jury attributed to child abuse may have resulted from a surgery.
Another reason why the order in In re Texas House of Representatives is so extraordinary is that it involves what may be an unprecedented conflict between the state’s legislature and its governor. Texas Gov. Greg Abbott (R) has the power to issue a 30-day pause on Roberson’s execution (although not to grant him permanent clemency) but has thus far refused to do so”
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“a bipartisan group of state lawmakers issued a subpoena seeking Roberson’s testimony before a committee of the state’s House of Representatives. This hearing isn’t scheduled until Monday, and Roberson obviously could not comply with this subpoena if he had been killed Thursday night.
So Roberson’s case raises what may be a unique separation of powers issue under the Texas Constitution: Can Texas’s executive branch of government carry out an otherwise lawful execution if doing so would prevent its legislative branch from hearing testimony from a witness it has already subpoenaed?”
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“The striking thing about this case, however, is that virtually everyone who has touched it wants Roberson to live except for the few people in Texas’s government (the Court of Criminal Appeals, the pardon board, and Abbott) who actually have the power to save him.”
“The program works like this: Registered voters in Arizona, Pennsylvania, North Carolina, Georgia, Michigan, Nevada, or Wisconsin — all swing states that could go for either Vice President Kamala Harris or Trump come Election Day — can sign the petition, which claims to be a “Petition in Favor of Free Speech and the Right to Bear Arms” until Monday, October 21, which happens to be the voter registration deadline in Pennsylvania.
The petition is being circulated by Musk’s America PAC, which has taken over much of Trump’s ground operation in key swing states. Musk has made Pennsylvania a particular focus of his personal outreach, hosting events there, including one on Sunday where he handed a woman in a Trump-Vance shirt a giant $1 million check.
Though the petition does not require signers to be registered Republicans, the focus on the First and Second Amendments does seem to appeal to potential Trump voters who fear Democrats will take away their gun rights and who subscribe to Musk’s idea of “free speech.” The net effect, then, is that Musk is promising $1 million a day to a program aimed at getting pro-Trump voters registered in swing states.
Because his contest is only open to registered voters, there may be a case for it to be understood as an illegal financial incentive to get people to register to vote, as Public Citizen’s complaint alleges. One issue Musk faces, said David Becker, executive director of the nonpartisan Center for Election Innovation & Research, is that what constitutes payment for voting-related activity has been broadly interpreted in the past.
“This could involve anything of value,” Becker said. The law “has been applied to things like Ben & Jerry’s offering everyone who has an ‘I Voted’ sticker an ice cream cone on Election Day. They received a cease-and-desist letter and changed [the promotion to give] everyone a free ice cream cone on Election Day.”
There is some ambiguity in Musk’s promotion, compared to what Ben & Jerry’s offered, however. The uncertainty arises from the fact that Musk’s PAC is asking people to sign a petition for the chance to win $1 million, not explicitly rewarding them for registering to vote.
Daniel Weiner, director of the Brennan Center’s Elections & Government Program, told Vox that the issue at hand really comes down to whether entering a specific group of people in a lottery if they sign a petition counts as paying people to register to vote.”
“Since Trump’s three appointees gave Republicans a supermajority on the Supreme Court, the Republican justices have behaved as though they are all going down a GOP wishlist, abolishing the right to an abortion, implementing Republican priorities like a ban on affirmative action, and even holding that Trump has broad immunity from prosecution for crimes he committed using his official powers while in office. To be clear, right-wing litigants are not winning every case they bring before the justices, but on issues where the various factions within the Republican Party have reached consensus, the Republican justices reliably align with that consensus.
The lower courts, meanwhile, have become incubators for far-right policy ideas that often go too far even for a majority of the members of the current Supreme Court. Think, for example, of Judge Matthew Kacsmaryk’s failed attempt to ban the abortion drug mifepristone. Or an astonishing decision by three Trump judges that declared the entire Consumer Financial Protection Bureau (CFPB) unconstitutional. Both of these lower court decisions were rejected by the Supreme Court.
That there are some positions too far right even for many Republican members of the Supreme Court is a reminder of the diversity that exists among Trump’s judges. Some, like Justices Brett Kavanaugh or Amy Coney Barrett, are fully committed to using the courts to implement a long list of Republican ideas. But this cohort of judges also rejects at least some right-wing legal theories that would have catastrophic consequences for the country.
Both Kavanaugh and Barrett, for example, rejected the legal attack on the CFPB. They joined an opinion explaining that the plaintiffs’ legal theory had no basis in constitutional text or history, but they may also have been motivated by the fact that this theory could have triggered an economic depression if it had prevailed. Kavanaugh and Barrett also backed Trump’s claim that he has broad immunity from criminal prosecution for crimes committed in office, but on the same day they rejected a Texas law that would have given that state’s Republican legislature extraordinary authority to dictate what the media must print.
The other faction of Trump’s judges is more nihilistic. They include Kacsmaryk, who has turned his Amarillo, Texas, courtroom into a printing press for court orders advancing far-right causes. The nihilistic faction also includes judges like Aileen Cannon, the Trump judge who has presided over one of Trump’s criminal trials (and behaved like one of his defense attorneys), much of the far-right United States Court of Appeals for the Fifth Circuit, and Trump Supreme Court appointment Justice Neil Gorsuch.”
Trump played a key role in destroying the USFL in the 1980s?
“The NFL would later introduce extensive evidence designed to prove that the USFL followed Trump’s merger strategy, and that this strategy ultimately caused the USFL’s downfall. The merger strategy, the NFL argued, involved escalating financial competition for players as a means of putting pressure on NFL expenses, playing in the fall to impair NFL television revenues, shifting USFL franchises out of cities where NFL teams played into cities thought to be logical expansion (through merger) cities for the NFL, and, finally, bringing an upcoming antitrust litigation..”
“The “historical tradition” test announced in Bruen has no real substance, cannot be applied consistently by lower court judges, and has led to absurd and immoral results. Just last June, for example, the Supreme Court had to intervene after an appeals court, in a perfectly honest application of the Bruen decision, ruled that people subject to domestic violence restraining orders have a constitutional right to own a gun.
But, while the Court’s decision in that case, United States v. Rahimi, reversed one of the federal judiciary’s most astonishing post-Bruen decisions, it left Bruen’s confounding historical test in place. Under Rahimi, “a court must ascertain whether the new law is ‘relevantly similar’ to laws that our tradition is understood to permit” — whatever the hell that means.
In a separate concurring opinion in Rahimi, Justice Ketanji Brown Jackson quoted a dozen lower court opinions complaining that judges can’t figure out how Bruen is supposed to work. As one of those opinions stated, “courts, operating in good faith, are struggling at every stage of the Bruen inquiry. Those struggles encompass numerous, often dispositive, difficult questions.”
This chaos is likely to continue until Bruen is overruled. The history and tradition test announced in the case provides lower court judges with no meaningful guidance on which gun laws are constitutional. And Bruen allows judges who are determined to reach pro-gun conclusions no matter what the consequences to strike down virtually any gun law — which may explain Broomes’s decision in the Morgan case.”
“When the Supreme Court endorsed broad presidential immunity from criminal charges last month, it raised troubling questions about whether and how former occupants of the White House can be held accountable for abusing their powers. In an initial attempt to answer those questions, Special Counsel Jack Smith this week unveiled a superseding indictment in the federal election interference case against former President Donald Trump—the same case that prompted the Court’s ruling.
The viability of United States v. Trump is unclear at this point. The Supreme Court charged U.S. District Judge Tanya Chutkan with reviewing the charges against Trump in light of its ruling, and any decisions she makes will be subject to appeal. There is no chance that the case will go to trial before this year’s presidential election, and if Trump wins, we can be sure he will find a way to make it disappear. Smith’s revisions nevertheless suggest what it might take to successfully prosecute a former president despite the obstacles that the Supreme Court has erected.
The most notable change from the original indictment is the excision of any reference to Trump’s interactions with the Department of Justice (DOJ). The government initially portrayed those conversations, in which Trump pressured DOJ officials to investigate his baseless claims of systematic election fraud, as part of a criminal scheme to overturn President Joe Biden’s victory. But the Supreme Court explicitly ruled out criminal liability based on such contacts.
Trump was exercising his “conclusive and preclusive” authority as president when he urged the DOJ to validate his stolen-election fantasy, Chief Justice John Roberts wrote in the majority opinion. The executive branch has “‘exclusive authority and absolute discretion’ to decide which crimes to investigate and prosecute,” he wrote, “including with respect to allegations of election crime.”
As Justice Sonya Sotomayor noted in a dissent joined by Justices Elena Kagan and Ketanji Brown Jackson, that holding seems to give presidents a lot of leeway to wield the federal government’s daunting prosecutorial powers against their political or personal enemies. Under the majority’s “view of core powers,” she said, “even fabricating evidence and insisting the [Justice] Department use it in a criminal case could be covered.”
Sotomayor also noted other possible implications of the majority’s position. When a president “uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution,” she warned. “Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”
Roberts faulted Sotomayor for “fear mongering on the basis of extreme hypotheticals.” But we do not need imaginary scenarios to understand the perils of assuring presidents that they need not worry about the threat of criminal prosecution as long as they are exercising their “core powers.”
The proposed articles of impeachment against Richard Nixon alleged, among other things, that he made “false or misleading statements to lawfully authorized investigative officers and employees of the United States” and that he interfered with “the conduct of investigations by the Department of Justice of the United States, the Federal Bureau of Investigation, [and] the office of Watergate Special Prosecution Force.” The issue of whether Nixon could have faced criminal charges based on those allegations was never litigated, because he resigned before he could be impeached, and his successor, Gerald Ford, granted him a pardon that covered any federal offenses he might have committed in office. But according to the Supreme Court’s reasoning in Trump v. United States, Nixon’s corrupt interactions with the DOJ would have been off limits for federal prosecutors.
Beyond that specific instruction, the Court was hazy about the extent of presidential immunity. “We conclude that under our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office,” Roberts wrote. “At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity. At the current stage of proceedings in this case, however, we need not and do not decide whether that immunity must be absolute, or instead whether a presumptive immunity is sufficient.”
What about Trump’s interactions with Vice President Mike Pence? Trump persistently pressured Pence, in private and in public, to intervene on his behalf during the congressional ratification of the election results by rejecting electoral votes for Biden. Citing the “contingent” electors that his campaign had recruited in several battleground states, Trump urged Pence to send both sets of slates “back to the states” so that legislators could resolve a nonexistent controversy about the actual results. Pence repeatedly resisted, saying he had no authority to do what Trump asked.
The original indictment portrayed those interactions as a key part of a criminal conspiracy to change the outcome of the election. That aspect of the indictment presented “difficult questions,” according to the Supreme Court. “Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct,” Roberts wrote. “Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President. The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct.”
The question, Roberts said, is “whether that presumption of immunity is rebutted under the circumstances.” He noted that the vice president is acting “in his capacity as President of the Senate,” part of the legislative branch, when he oversees the electoral vote count. The government therefore “may argue that consideration of the President’s communications with the Vice President concerning the certification proceeding does not pose ‘dangers of intrusion on the authority and functions of the Executive Branch.'”
Would that argument be correct? Maybe not, Roberts suggested: “The President may frequently rely on the Vice President in his capacity as President of the Senate to advance the President’s agenda in Congress. When the Senate is closely divided, for instance, the Vice President’s tiebreaking vote may be crucial for confirming the President’s nominees and passing laws that align with the President’s policies. Applying a criminal prohibition to the President’s conversations discussing such matters with the Vice President—even though they concern his role as President of the Senate—may well hinder the President’s ability to perform his constitutional functions. It is ultimately the Government’s burden to rebut the presumption of immunity.”
The new indictment tries to do that in several ways. It notes that Pence was Trump’s “own running mate,” meaning the intervention that Trump demanded would personally benefit both of them. It adds that “all of the conversations between [Trump] and [Pence] described below focused on [Trump] maintaining power.” The indictment points out that Trump “had no official responsibilities related to the certification proceeding, but he did have a personal interest as a candidate in being named the winner of the election.” It later reiterates that Trump “had no official role” in the certification process.
The indictment also emphasizes the private character of other conduct that might be construed as “official acts.” Regarding Trump’s pressure on state officials to reverse Biden’s victories, for example, the indictment notes that Trump “had no official responsibilities related to any state’s certification of the election results.” Discussing Trump’s “fake electors” scheme, the indictment likewise notes that he “had no official responsibilities related to the convening of legitimate electors or their signing and mailing of their certificates of vote.”
Like the original indictment, the revised version describes the notorious telephone conversation in which Trump leaned on Georgia Secretary of State Brad Raffensperger to “find” the votes necessary to reverse the election outcome in that state. But the indictment makes a point of noting that the participants in that call included “private attorneys” and White House Chief of Staff Mark Meadows, who “sometimes handled private and Campaign-related logistics” for Trump.
The indictment still relies on Trump’s social media posts to make the case that he pushed a phony grievance aimed at preventing Biden from taking office. But it argues that such communications should not be viewed as “official acts.”
Although Trump “sometimes used his Twitter account to communicate with the public, as President, about official actions and policies,” the indictment says, “he also regularly used it for personal purposes—including to spread knowingly false claims of election fraud, exhort his supporters to travel to Washington, D.C. on January 6, pressure the Vice President to misuse his ceremonial role in the certification proceeding, and leverage the events at the Capitol on January 6 to unlawfully retain power.” And when Trump riled up his supporters that day, stoking their outrage at the prospect that Congress was about to recognize Biden’s supposedly fraudulent victory, he was speaking at “a privately-funded, privately-organized political rally.”
The indictment lists five alleged co-conspirators, “none of whom were government officials during the conspiracies and all of whom were acting in a private capacity.” It describes four as “private attorney[s]” and one as “a private political consultant.””
“Immigrants, including those living in the U.S. illegally, can get a green card if they marry an American citizen. But U.S. law generally requires those who entered the U.S. illegally to leave the country and re-enter legally to be eligible for a green card. Doing so, however, can trigger a 3- or 10-year ban from the U.S., prompting many mixed-status families not to pursue that option.
While the Biden administration has argued its initiative promotes family unity in households that include U.S. citizens, Texas and the other Republican-controlled states said in a lawsuit filed Friday that the policy rewards illegal immigration. The red states, which have challenged nearly every major Biden administration immigration move, said the policy misused the immigration parole authority.
On Monday, Barker, the federal judge in Texas appointed by former President Donald Trump, issued an administrative order prohibiting the Department of Homeland Security from granting parole to those applying for the Keeping Families Together policy.”