History & Culture / Opinion / Politics / We The People

Five Big Points – Defining This Moment

AmericanTime to clarify murky water, shall we? Five big points are being missed. They are vital to the future of our Republic, should help calm and define this churning moment in American history.

First, legal processes – constitutional and statutory – exist to mitigate foreseeable conflict.  That is why the US Constitution contains Article II, section 1.2, defining how to electors are chosen.  That is why Title 3, Section 15 prescribes how electors are counted.  That is why our Founders permitted legal challenges to electors’ selection.  Accordingly, calling US Senators “Nazis” and blaming them for senseless political violence – based on pursuit of legal process – is just wrong.

Second, political violence begets political violence.  As a former Assistant Secretary of State, charged with supporting rule of law in corrupt and unstable countries, I have seen it the world over. That is why resolving political differences through street violence – attacks on public or private property, or persons – has never been legally acceptable in the United States.  It was not acceptable in Shays’ and Whiskey rebellions, 1960s, summer 2020, or in mobbing the Capitol.

Notably, if any good comes from those jaw-dropping images of violence at the Capitol, it may be this:  On left and right, from any perspective whatever, there should be a go-forward consensus that political violence is to be universally condemned – regardless of justification.  Violent riots are anti-American, undermine law, must end.  If all leaders accept that standard – we turn a page.

Third, a word about “incitement.”  This is a legal term.  It has a concrete meaning.  It does not mean bad judgement, loose, negligent, improvident, irresponsible, or even reckless use of words in the conduct of politics, or any other venue – all legally permitted by the First Amendment.

Quite the reverse, “incitement” to violence requires specifics.  The law is set by the US Supreme Court, which took a tough case at another time in American history bubbling with emotion, political and racial tensions, overlayed by foreign actors and engagements, rife with fear.

Against that backdrop, a liberal court in 1969 stood up for the First Amendment.  The seminal case on “incitement” is Brandenburg v. Ohio.  It involved what most would call reckless, unjust, dangerous advocacy of collective action, including a DC march. The Supreme Court was crystal clear.  What was said was hostile, but protected by the First Amendment, not incitement.

A quick, dispassionate review of that Supreme Court case would be useful – including by the US House, which seems intent on substituting a lesser political standard for governing law, stumbling headlong into yet another ill-advised, country-splitting impeachment stampede.

Putting aside the horrible precedent of a rushed “two-week impeachment” – can you imagine what that would mean for future presidents? – the legal standard is being disregarded. It matters.

For the past 50 years, the High Court has rejected definitions of incitement that outlaw free speech based on a “clear and present danger,” “tendency” to sedition, or encouraging resistance. Instead, the standard is knowing intent to cause specific and imminent lawlessness – combined with the likelihood of that specific lawlessness occurring.

In short, inflammatory speech, if not expressly directing imminent violence, is protected by the First Amendment.  That is why those questioning electoral integrity, complaining about potential fraud based on mail-in ballots, pursuing legal challenges to elector slates – and even talking briskly of resistance – are not guilty of “incitement.” That is why the US Justice Department has made clear no one is being prosecuted for “incitement.”

That said, we are at a crossroads.  The First Amendment – once upheld by liberal Justice Earl Warren’s Court, in that unanimous Brandenburg opinion joined by Associate Justices Thurgood Marshall, William Brennan, Potter Stewart, John Harlan, Byron White, Hugo Black, and William O. Douglas – seems like ancient history.  This realization leads to the next point.

Fourth, the First Amendment is under fire. Nowhere is this more obvious than in the past week’s crazy redefinition of permissible speech on “matters of public concern,” such as elections, election integrity, and constitutional processes – by media and social media outlets.

In a head-spinning series of unilateral, unprecedented decisions, major social media outlets – with near monopoly over public communications in this venue, exempted from legal remedy – literally shut down a president’s access to the venue, blocked, removed, or edited thousands of others.  High tech then blocked access to competing social media options, with political bias.

Beyond selective media reporting, misreporting, and political activism, social media just flipped the table.  They are literally now acting, with perceived immunity from prosecution, as final arbiters of political access to a major medium, dictating to citizens and political leaders who can speak, when, how, on what topics, with what passion, affiliations, intent, and consequences.

Plainly, in a representative democracy – based on the sacred role of corrective action through free speech – this cannot stand.  How political and legal actors undertake to restore free political speech is unclear, but a good guess is State and Federal legislation, plus robust private litigation.  Americans will not stand for being silenced, intimidated, cajoled, or manipulated by anyone.

So, what comes next?  Likely rising public discontent, disaffection with leading media and social media, calls for corrective legal, legislative, market, and economic actions – including major market moves away from censoring venues.  The average American is likely to get more politically involved – not less – when efforts aim to shut him or her out of public dialogue.

Call this five, a cautionary note for the moment, connecting dots. Because legal processes count and mitigate conflict, because political violence is unacceptable in America, because incitement has a real and legal meaning, and because the First Amendment is under fire, all Americans should be willing to step up and be heard, not remain docile, silent or – God forbid – fearful.

In short, our First Amendment is sacred, one reason it comes first.  It says, Government “shall make no law … abridging freedom of speech.”  That presumably means it is unconstitutional for a law to shield social media outlets intentionally abridging political speech, such as Section 230 of the Communications Decency Act.  It also means citizens are empowered to speak up when free speech is infringed.  Much is murky, but that much is not.  Violence has no place in our political process, but vocal objection to being stripped of core rights certainly does.

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Daniel Beck
7 months ago

Anyone that believes we Conservatives were the ones that started the street violence in Washington, D.C. on January 6th is missing out on a few salient points. The ring leaders of the violence have already been proven to be of BLM and AntiFa connections. A few have already been released without bail.
That we, and by extension President Trump, are being tarred by that brush is both naive but dangerous in the connection. Why would those of us who wrought the beginnings of this movement, the TEA Party and 912, begin violent riots?

Clark Kent
8 months ago

Another ignorant government dolt. Where do I begin? First, the USA is a CONSTITUTIONAL REPUBLIC, not a ‘representative democracy’. Secondly, the American Revolution was ‘street violence’ and we would have ZERO ‘political process’ if the patriots did not engage in same. Next, Thomas Jefferson said: ‘I hold it that a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical’. Finally, OPEN YOUR EYES, as ‘legal processes’ mean NOTHING to Dumbocrats, who could CARE LESS about both the Constitution and the rule of law, only POWER and maintaining same at any and all costs. ‘Soap box, ballot box, cartridge box’ – Abraham Lincoln. The time for the soap box and ballot box is over. WAKE UP! The clueless, the deniers and the unprepared will be the first to fall.

Dan
7 months ago
Reply to  Clark Kent

Chill. It’s as close to a representative democracy as we’ll get. Fight for that representative form, because the democrats and liberals are doing all they can to destroy any representation.

Clark Kent
7 months ago
Reply to  Dan

Dan is one of the clueless/deniers who will be the first to circle the drain. Sure hope you don’t have a family.

Steve
8 months ago

As has been proven; this is a Plandemic, first made known in a direct word from Fauci himself in 2017, and being used by the Deep State to bring their agenda to make America a third world nation under their control. How many came out of nowhere to condemn our duely elected President as a traitor! When he has accomplished more good for this nation than any of the last 10 presidents! THE LEFT PROGRESSIVES HATE HIM; PERIOD.

Jude
8 months ago

Thank you, Robert Charles. For me, you explained exactly what is happening today and precisely what the laws of our country mean. This will be passed on to family and friends.
God Bless You!

Admin
8 months ago

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Dana W
8 months ago

Our enemies would love it if this country had a civil war and would take full advantage of it.

Patricia Jo
8 months ago

Hopefully This article represents the notion that “cooler heads will prevail.” I have thought all along this is a constitutional crisis and this well-written, clear delineation of the issues support my thoughts precisely!

NeverBiden
8 months ago

Biden will ask Trump to remain in office another two weeks so that Schumer’s senate can remove Trump.
Crooked ? Sure but that’s how DC works, Anything to throw more bombs at Trump. Stay tuned.. Other
tricks are planned.

NeverBiden
8 months ago

We can discuss the “big picture” when Biden in inaugurated. Or watch paint dry.
Now, while Trump is still in office, we can still have the blast we have had the last 4 years
and I dread missing it.
So, impeachment # 3 ? Lets go for it. Nancy, the impeachaholic, can surely think of
something.

John A. Fallon
8 months ago

If this voter fraud is allowed to stand, THERE IS NO NEXT ELECTION, THE MACHINES RULE, WELCOME TO THE MATRIX! we have the right to recall politicians if they fail to serve us or defend the constitution, BUT since msm social(ist) media has kept the truth from us and all politicians posing as “americans” are all socialists as well as ALL LAWYERS AND JUDGES, GOOD LUCK WITH THAT, ONLY ONE PARTY EXISTS NOW and it is corrupt, treasonous, evil and VERY DANGEROUS, they have unleashed thier “brownshirts” and they have TASTED BLOOD and they LOVED the taste and they WANT MORE, THE LEFT WILL NOT BE ABLE TO CONTROL THEM, BE VIGILANT AND YOUR FAMILY CLOSE, the braindamaged left want to release ALL the violent criminals from prison, PRAY FOR THE BEST, BUT BE PREPARED FOR THE WORST, YOU WILL BE FORCED TO FIGHT, OR SURRENDER, BUT THAT IS NOT AN OPTIN.

Daniel Fickus
8 months ago

Apparently, the First Amendment has been redefined as, Whose ox is getting gored.

Diana Gordon
8 months ago

The last sentence of this article says it all.

JuliaK
8 months ago
Reply to  Diana Gordon

Violence has no place in our political process, but vocal objection to being stripped of core rights certainly does.

Kenneth
8 months ago

It’s well beyond time for true Americans to realize the raw fact that the radical left and, to a slightly lesser degree, the Beltway Establishment are not playing politics, and haven’t been for some time (decades). They are conducting winner takes all, search and destroy internal warfare against the Constitution and America’s values and way of life. They are following the same basic tenets as the global Communist Party and the National Socialists (Nazi Party) in 1930’s Germany.
During the past 50+ years, they have established firm beachheads and/or basic control in American education and academia, the journalism, social and entertainment medias, state and federal judiciary, key financial players, weak, greedy career politicians and the federal “deep state” bureaucracies. The ironic fact is many of these gullible “useful idiots”, as Lenin called them, who hold key enabling and supporting roles, have no clue that they will be some of the first to be “thrown under the bus” when total control is achieved.
The Radical Left does not discuss or permit the disclosure of history, the use of rational analysis and fact-based common sense, as they all fail to support the tired, old tenets of their agenda. That is why total control, including the disarming of law abiding citizens, is always their exclusive objective with absolutely no compromise permitted.

David P Nelson
8 months ago

The ‘Conservative’ Americans must rally and speak up! We can not allow the ‘Left’ Liberals to overrun our Government.

Just A Citizen
8 months ago

Some have said there were over a million people in Washington DC on January 6th supporting their President as well as supporting the validity of their votes. Could the leftists culling free speech from our nation think for a second and consider what would happen if only one half of one percent of those attendees decided to go full on guerrilla civil war……and add to that the other 74 million Trump supporters that are disillusioned with the tyrannical acts of the left…..that would make for one hell of a watering of the tree of liberty with the blood of those tyrants. God help the left…..its pure physics, for every action there is an equal and opposite reaction so, make sure you have some awesome security folks protecting you leftists…as if it will help.

John#82
8 months ago

I am disappointed in ALL media outlets, from CNN to Twitter to Amazon to Apple and all those in-between who abridged the voices of free Americans REGARDLESS of their petty reasons. When did these arrogant democrats become so self-absorbed as to spend $Millions of taxpayer dollars in pursuit of party vengeance ? The COVID pandemic has been thrust upon the world yet our own politicians persist in fake impeachment litigation, tearing up speeches publicly, ridiculing each other and plotting a very irregular (at best) election while obstructing “The People’s” business. All this while being truly incited by a media, who is little doubt, being financed by foreign interests!! Recall, “divide and conquer” ? Well, our politicians seem to be leading this “DIVIDE” while literally blowing $Millions in this endeavor. So, add to my disappointment…all media AND politicians because they ALL demonstrate they are unable to rise above personal petty indifferences, despite lecturing us all to “embrace diversity”?

JANICE L PIATT
8 months ago

Our rights and laws are definitely being abused. It’s so frustrating to feel that you have no voice and no recourse. This is an excellent article, I wish I could share.

Danny Estridge
8 months ago

Not really into any of this, kinda wish I wasn’t white, though I don’t know what I am (adopted), just would like to know how these Antifa and BLM people collect a paycheck. I mean, if they had jobs, they wouldn’t have time for this I think. Funny, I was never taught about this racist stuff, my brother has brown skin and is half Mexican, both of us wonder what the heck is going on. He’s more conservative than me. He’s just like me though, if you ever throw down, we tend to fight a tad against whoever is talking BS. Everybody is the same, we all bleed red blood, I kinda became more sissyfied because I ended up being a medic which meant do no harm. It was very hard at first. Now we’re close to civil war I think and guess what, the color of your skin still doesn’t matter, what matters is I collect guns and if I have to, I will defend myself. Don’t want to, but will if these idiots keep getting more violent. Only problem is I have to fix whatever I cause, it was easier doing 20 years in military instead of dealing with these idiots that have no clue as to why they’re doing this. Heck, kinda wish I was still active, at least I knew who my enemy was, here, right now, it could be my next door neighbor for al I know. EVERYBODY NEEDS TO CHILL OUT BEFORE MORE PEOPLE GET HURT OR WORSE. I will still kill the enemy, just wish it wasn’t us. 20 years in the military and I’m dealing with people that have no concept of what life means, ya’ll just need to go to the corner of the school room for this period. I have PTSD and if threatened will probably eliminate the force threat. Force of habit. GOD HELP AND SAVE US, IN JESUS NAME, AMEN.

Dove
8 months ago

When can we start a 3rd party? It worked in the UK. 6 months they got rid of most of the crooked politicians on both sides. Only difference is, they still have election integrity. If we can’t get free fair elections working with the dems then Conservatives and Independents should have their own elections and/or who voted Republican or 3rd party on a signed list. Should have been done last election. Trump could have proved he got 80% of the legal registered voters. I watched all the state Senate hearings. Filled a notebook with all the fraud. That info needs to be posted, by state, on sites big tech can’t ban and emailed to everyone. Ex: 66,000 teens still under the age of 18 voted in Georgia and they refused to remove their votes.

Linda King
8 months ago

I don’t use Facebook, Twitter or Parlor, but nevertheless these are public platforms that individuals have taken upon themselves to join to air their differences, dirty laundry or whatever else they feel the need to speak about. I think Local, State and Federal Governments should sue all media outlets on behalf of their citizens for infringing on their right to free speech. Sometimes you have to hit them in the pocketbook to get their attention

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