Remember Policy, Procedure, Process, Protocol and Practice are more important to the Law Enforcement Caste than the Law or Constitutional Rights.

 Colorado Paramedics Found Guilty in Death of Elijah McClain

Miller v. Salvaggio Stonewall until Ruby Johnson dies and dismiss due to mootness.

I love Merb saying that if the police, prosecutors and the court all sign off on a warrant that proves probable cause.   And blocked mentioning Ruby Johnson  v.  DPD Detective Gary Staab.  A 77-year-old grandmother was subjected to a raid by a Denver Police Department (DPD) SWAT team.   The police, prosecutors and the court blamed each other for the manifestly deficient search warrant saying the other parties should have stopped it and now are responsible.   

“Detective Staab had no grounds to seek a search warrant,” said Mark Silverstein, ACLU of Colorado Legal Director. “His supervisor should have vetoed it. The district attorney should not have green-lighted it, the judge should have rejected it and the SWAT team should have stayed home.”

https://www.aclu-co.org/en/press-releases/aclu-sues-denver-police-detective-over-unlawful-swat-team-search-montbello

Is Trump Protected Because Of “Political Speech”? – Outside the Beltway

Is Trump Protected Because Of “Political Speech”? – Outside the Beltway

 

Is Trump Protected Because Of “Political Speech”?

Why "the First Amendment protects Trump" defense doesn't make sense

Matt Bernius · Wednesday, August 2, 2023 · 13 comments

Yesterday, history was made again as former President Trump was indicted for the second time in Federal Court. The “talking” indictment, a term for an indictment that intentionally lays out the core facts that underly the prosecution, accuses Trump and presently unindicted co-conspirators of the literally unprecedented act of attempting to overturn the results of the 2020 Presidential Election. For more reaction to the indictment on OTB, see James’ article from today.

As one would expect, most Right Wing Media outlets immediately began to defend the former President and attack the indictment. And, as usual, Fox News turns to the heterodox Law Professor Jonathan Turley for assistance. Earlier in the day, Turley had tweeted the following reaction to the indictment which he more or less repeated on air:

Since Turley raised the specter of protected First Amendment speech a lot of his fellow lawyers have tried to figure out what he is talking about. Based on my understanding of the case, I think Jonathan Urick, a lawyer with the U.S. Chamber Litigation Center and a former clerk for both Justices Thomas and Scalia has it right:

In the area of First Amendment Law, the courts have long found that there are categories of speech. One of those categories is “political speech:” statements made by Politicians related to governance and political activities, in particular when they are addressing their constituencies. Along with religious speech, political speech was at the heart of the creation of First Amendment.

As such, in the US, political speech is highly protected. That understanding protected Trump when he was President. Perhaps the best example was in the E. Jean Carroll defamation lawsuit where the Department of Justice under both Trump and Biden¹ advanced the argument that Trump’s comments about Carroll while on the campaign trail and as President fell under the category of political speech. And while that might seem like a stretch, the precedent was on their side. Take for example the case of a former Congressman who was sued by the Council on American-Islamic Relations for publicly blaming the organization for his divorce (among other things):

“Because the Congressman was acting, at least in part, for the purpose of preserving his effectiveness, this Court finds he was acting within the scope of his employment at the time of the incident in question,” U.S. District Court Judge Richard Leon concluded in an opinion dated March 29.

The case stemmed from comments made by Ballenger to a home-state newspaper, The Charlotte Observer, in October 2003.

During the interview, Ballenger blamed the demise of his 50-year marriage on the proximity of his Capitol Hill home to the Council on American-Islamic Relations headquarters — a situation that he said caused significant stress and “bugged the hell” out of his wife. Ballenger retired at the end of 2004.

The North Carolina Congressman also accused CAIR of being a “fundraising arm” for the terrorist organization Hezbollah, a statement at the core of CAIR’s defamation suit.

But U.S. District Court Judge Richard Leon granted Ballenger’s motion to dismiss the case, concluding that Ballenger “was acting within the scope of his employment.”

https://rollcall.com/2005/03/31/judge-throws-out-cair-suit-against-ballenger/

The First Amendment’s protection of political speech is also why it’s legal to outright lie in political speeches or interviews–something the indictment specifically calls out on page 2:

3. The Defendant had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won.

https://drive.google.com/file/d/129IFEN5MydlBCXRocEDzqw-wT3ed_TLs/view (h/t to Jay Caruso for creating an OCR’d verion of the indictment)

However, returning to the case of the Trump Indictment and Urick’s critique of Turely, the issue at hand are the limits of political speech. For example, take this exchange documented in the Indictment:

On January 1, the Defendant called the Vice President and berated him because he had learned that the Vice President had opposed a lawsuit seeking a judicial decision that, at the certification, the Vice President had the authority to reject or return votes to the states under the Constitution.
The Vice President responded that he thought there was no constitutional basis for such authority and that it was improper. In response, the Defendant told the Vice President, “You’re too honest.”

ibid

This private conversation, though it had to do with a political subject, isn’t necessarily protected as political speech. Or rather, this quote is doing something other than just political speech. In that speech act, Trump is calling attention to the fact that he is asking Vice President Pence to do something dishonest and outside of his power.² Context is critical. And the indictment is full of examples of these conversations that, in context, are clearly more than just political speech–especially when read in light of other statutes.

It’s also apparent that Special Prosecutor Jack Smith’s team has carefully considered this issue when we consider what wasn’t charged. And this gets back to Urick’s mention of the Brandenberg Incitement test.

While the indictment does contain a number of Trump’s incendiary tweets leading up to and on January 6th, note that Trump is not charged with Incitement. As Ulrick correctly notes, this is an area where the Supreme Court has set an extremely high standard for political speech in the case of Brandenberg v. Ohio (1969). It’s a landmark First Amendment case where the court found that there needs to be an exceptionally high standard of speech creating the Brandenburg Test:

1. The speech is “directed to inciting or producing imminent lawless action,” AND
2. The speech is “likely to incite or produce such action.”

https://www.law.cornell.edu/wex/brandenburg_test

For more on Brandenberg, I recommend an episode of the podcast Make No Law, hosted by Ken White (aka Popehat) on the case.

This is an area where I, and I suspect Urlick, think Turley is right. While odious, Trump’s tweets most likely do not meet the Brandenburg test. That’s also a position that Ken White, himself a former Federal Prosecutor, has taken repeatedly in the past. And, at least for the moment, Smith appears to be following the same logic.

The Brandenberg test also gets to the issue with Turley’s position. In his tweet and other comments, it seems like he’s suggesting that because many of former President Trump’s comments in the indictment fall into the category of political speech they are somehow inherently off-limits. To be clear, this has never been the way that political speech has worked.

As White wrote earlier today:

[P]olitical speech is the most jealously protected speech under the First Amendment. Speech is not inherently or automatically outside of First Amendment protection merely because it is false. On the other hand, fraud and speech inherent in a crime are acknowledged First Amendment exceptions.

https://popehat.substack.com/p/people-are-lying-to-you-about-the

Returning to Brandenberg, everything is about context. The Brandenberg test is not simply whether the speech is political or not, but rather does it meet the two standards. Like it or not, Trump’s speech acts don’t appear to rise to that level.

Likewise, any of the speech acts in the indictment need to be read against the corresponding criminal statutes to determine contextually if they meet those standards. The majority consensus, outside of the Right Wing Media ecosystem, is that they do. And it clearly was enough for a Federal Grand Jury to Indict. Whether or not that thinking will survive the higher standard of a jury trial remains yet to be seen.

---

Note: I am not a lawyer. I have taken legal classes specifically on the First Amendment and specifically Brandenburg (among other topics). I am married to a Federal Clerk and these are topics we discuss. So without a doubt, Jonathan Turley has forgotten more about the First Amendment than I have ever known. However, it’s also worth noting that a lot of other Lawyers with First Amendment experience and Federal Criminal Prosecution experience disagree with Turley’s take (see both Ulrick and White as a few examples).

Also, I’d encourage anyone whose gotten this far and wants to raise the “well Turley’s an expert and you aren’t” to ask yourselves how your feel about Turley previously stating that he thinks that the last round of Federal changes against Trump are serious and well-founded. If you accept that Turley is right that all of this should be thrown out as political speech, then why don’t you accept Turley’s legal analysis of the Mar A Lago document situation (i.e. that this isn’t just an unfounded witch hunt?).

¹ – As Trump has continued to advance the same attacks on E. Jean Carroll since leaving office, the DoJ has reached the conclusion that those comments no longer fall under the “political speech” protection.

² – The “You’re too honest” quote is really important as Trump’s best defense is that he “honestly” believed he had won the 2020 election. However, admissions like this one, and other examples in the indictment where he refuses to consider evidence to the contrary, speak to the fact that he understood that the facts are against him and didn’t care, intentionally asking people to do dishonest things and take actions that are not legal.

About Matt Bernius

Matt Bernius is a design researcher working to create more equitable government systems and experiences. He's currently a Principal User Researcher on Code for America's "GetCalFresh" program, helping people apply for SNAP food benefits in California. Prior to joining CfA, he worked at Measures for Justice and at Effective, a UX agency. Matt has an MA from the University of Chicago.

Only prosecutors get to quote dicta

Jack Smith in this indictment quoted a single judge in Trump v. Wisconsin. But I am not allowed to quote the plaintiffs, Soyomayor or RBG in Schuette v. Coalition to Defend Affirmative Action because true lawyers would not do that.

On December 14, the Wisconsin Supreme Court rejected an election challenge by
the Campaign. One Justice wrote, “[N]othing in this case casts any legitimate doubt that the people of Wisconsin lawfully chose Vice President Biden and Senator Harris to be the next leaders of our great country.”

Progressive double standard. Prosecutors are smart legal geniuses for using the same argument that shows you are a member of cult.
WRONG!! bad legal theory and arguments: Quoting dicta to show that the last 4 females appointed to Supreme court by Democrats believe the 14th amendment and due process protections from it do not apply to white people.

CORRECT!! Smart and savvy legal theory and arguments: Prosecutors quoting dicta in the Trump indictments. Like DA Bragg mentioning the Trump Access Hollywood tape in his indictment.

 

“Get the checkbook out”: Trump voter hires Dominion lawyer to sue Fox News for “destroying” his life

Ray Epps says DOJ informed him he will be criminally charged, which he blamed on Tucker Carlson's smear campaign

By IGOR DERYSH

Senior News Editor

PUBLISHED JULY 13, 2023 9:01AM (EDT)

Ray Epps, in the red Trump hat, center, gestures to a line of law enforcement officers, as people gather on the West Front of the U.S. Capitol on Wednesday, Jan. 6, 2021 in Washington, DC. (Kent Nishimura / Los Angeles Times via Getty Images)

ATrump supporter at the heart of a Jan. 6 conspiracy theory pushed by MAGA allies filed a defamation lawsuit accusing Fox News of a years-long smear campaign.

Ray Epps, who attended pro-Trump rallies in D.C. on Jan. 5 and 6 and was seen on a video encouraging people to enter the Capitol but was not initially charged with entering the building himself, sued the network after former Fox News host Tucker Carlson suggested that he was a government informant — which the FBI and Epps have denied, according to The Washington Post.

Epps claims in the suit that the Justice Department informed him in May it "would seek to charge him criminally," which he attributed to "the relentless attacks by Fox and Mr. Carlson and the resulting political pressure."

"Fox, and particularly Mr. Carlson, commenced a years-long campaign spreading falsehoods about Epps," the lawsuit alleges, claiming that the falsehoods "destroyed" the lives of Epps and his wife, forcing them from their home.

The lawsuit, which was filed in Delaware, alleges that Fox and Carlson knew Epps was almost definitely not a federal agent but chose to disregard that information.

"Fox engaged in purposeful avoidance of the truth, intentionally ignoring information and evidence that directly contradicted Fox's outlandish lies about Epps," the complaint says. "Fox refused to retract, correct, or apologize for its demonstrably false and defamatory accusations against Epps well after Fox knew definitively that they were false, providing yet additional circumstantial evidence of actual malice. Fox thus broadcast its lies about Epps with a high degree of awareness of probable falsity."

Michael Teter, an attorney for Epps, sent a letter to the network in March demanding it retract its claims but did not receive a response.

"This lawsuit marks another moment of accountability for Fox News," Teter said in a statement. "For years, Fox News and Mr. Carlson created and amplified conspiracy theories about Ray that lacked any foundation in fact. Their lies exposed Ray and his wife, Robyn, to harassment, intimidation, and abuse – voicemails warning Ray to sleep with one eye open, bullet casings found on their property, death threats sent to their home."

Epps gained attention in right-wing circles after videos recorded on Jan. 5 showed him urging Trump supporters to "go into the Capitol."

Epps in the lawsuit claimed that he believed parts of the Capitol would be open to the public and that Trump supporters could legally enter them. Epps' photo briefly appeared on the FBI website seeking information about various protesters but was removed after he was interviewed by agents in July 2021.

The disappearance of the photo and lack of charges prompted a series of right-wing conspiracy theories alleging he was planted by federal agents to provoke otherwise peaceful Trump supporters into violence.

Carlson in January 2022 described Epps as a person who "helped stage-manage the insurrection."

During another show earlier this year, Carlson focused on the fact that Epps hadn't been charged.

"Why is that? Well, let's just stop lying," Carlson said. "At this point, it's pretty obvious why that is."

During a July 2022 episode, Carlson guest Darren Beattie, a former White House speechwriter, called Epps "the smoking gun of the entire fed-surrection" without any pushback.

Fox News host Laura Ingraham also discussed Epps in an October 2021 segment that featured a graphic asking "Were Federal Assets Involved in Capitol Riot?"

Some Republican members of Congress have also embraced the conspiracy theory.

"I think somebody that worked that hard to get people to go in the Capitol, why aren't they rotting away in the D.C. jail?" Rep. Marjorie Taylor Greene, R-Ga., said during a live stream last summer.

Rep. Troy Nehls, R-Texas, during a hearing with FBI Director Chris Wray on Wednesday, brought up Epps and accused the FBI of "protecting this guy."

Wray refuted Republican claims that the FBI was involved in the attack on the Capitol.

"This notion that somehow the violence at the Capitol on Jan. 6 was part of some operation by FBI sources and agents is ludicrous and is a disservice to our brave, hard-working, dedicated men and women," he said.

The lawsuit says that Epps and his wife were "loyal Fox viewers and fans of Tucker Carlson and other Fox personalities," and "were persuaded by the lies broadcast by Fox" that the election had been stolen. After Carlson's segments, the lawsuit says, he and his wife were deluged with threats and harassing messages, forcing them to flee from Arizona, selling the property at a low price.

"After destroying Epps's reputation and livelihood, Fox will move on to its next story, while Ray and Robyn live in a 350-square foot RV and face harassment and fear true harm," the complaint says.

The lawsuit comes on the heels of a nearly $800 million settlement between Fox News and Dominion Voting Systems over false claims the network aired about the election. Media Matters' Matthew Gertz flagged that Brian Farnan, the lead Delaware counsel for Dominion, is listed as one of Epps' lawyers in the lawsuit.

University of Utah Law Prof. RonNell Andersen Jones told the Post that Epps can show that he was harmed by the false claims but "the key question here is whether he was defamed, and that is going to require some careful situating of his facts within the framework that the law recognizes."

Though Carlson never directly said Epps was a federal agent, "when the whole story added together leads to a defamatory meaning, it can be found to be defamatory," Andersen Jones said. "This will almost certainly be the underlying theory of some of Epps's case."

MSNBC host Joe Scarborough on Thursday said Epps was one of numerous "ordinary people" whose lives had been ruined by Trump's election lies, also citing Georgia poll workers attacked by TrumpWorld and predicting the network would be found liable for defamation.

"Let me say that again, not a public figure, not used to this," he said. "The death threats, the security problems they had, I'm telling you, if I'm representing Fox News, I'm saying, 'Get your checkbook out and start writing.' They're going to have to do it again, Tucker Carlson is probably going to do it again because this guy isn't a public figure. It's not going to be hard for him to prove defamation."

Just like the defamation case against James Blake

 

Will Ray Epps Be Next To Sue Tucker And Fox News?

Inquiring minds want to know.

<iframe width="600" height="338" src="//embed.crooksandliars.com/embed/f1jCRQwo" frameborder="0" allowfullscreen></iframe>

By John Amato — July 9, 2023

New York Times reporter Jeremy Peters told MSNBC that the next shoe to drop for Fox News could be if MAGA-smeared Ray Epps sues Fox News for defamation after Tucker Carlson hyped the QAnon conspiracy theory scapegoating him as a government agent over the January 6 insurrection.

Far right conspirator site Revolver News and its white-nationalist editor/writer Darren Beattie, concocted a conspiracy theory that Epps was at the Capitol as an FBI plant inciting Trump supporters to riot.

Beattie was a constant guest on Tucker Carlson, and along with Glenn Greenwald promoted this outrageous lie with no proof to try and give aid and comfort to the seditious traitors led by Donald Trump.

After a group petitioned with the Federal Communications Commission to deny the broadcast license renewal of Fox Corp-owned Philadelphia TV station FOX 29, Peters said this is not the end.

There's this individual, Ray Epps, who was a Trump voter, but he was there on January 6th and somehow became the target of various Trump, pro-Trump conspiracy theories that Tucker Carlson repeatedly uttered on his show.

And talking to defamation experts in a story that I have coming over the next couple of days, this could be the next Dominion-type defamation lawsuit, because this guy's life was basically ruined by Tucker Carlson's promotion of false stories about him being a secret government agent.

So Fox paid big for Dominion, almost a billion dollars, and it's very likely that they will continue to pay because of lawsuits like this and challenges like this, you know, this FCC or FCC, rather, petition.

I don't know how successful, ultimately, that's going to be, but it's an example of the kind of legal pressure that Fox is under.

Every person and company that was derided, smeared, and defamed by Trump supporters in and out of the media to justify the Big Lie should be sued to the high heavens. And yes, Fox News should lose their broadcast license after the damage they've done.

A democracy cannot stand if fascist conspiracy theories are allowed to go unpunished when punishment is warranted.

Topics:

defamation, Fox News, Ray Epps, Tucker Carlson

#MaskCult upset when you point out they were wrong. Engage #DukeLacrosse talking points and protocol #covidamnesty #JustMoveOn

 Tomi Lahren Channels M. Night Shyamalan

Shorter Treadmill Lobotomy: I see dead masks everywhere!

Tomi Lahren Channels M. Night Shyamalan

By John Amato — May 1, 2023

Fox host Tommy Lamborghini (AKA Tomi Lahren) is having flashbacks!

Treadmill Lobotomy sees Covid masks in her sleep. On Sunday she tried to troll "the Left" over an anti-COVID complaint that ended a long time ago.

Huh?

Tampon Leglift was an original anti-vax shutdown nutjob. In April of 2020, when the pandemic was lifting off. Toothpaste Lipgloss called the Trump-ordered shutdowns a “trial of communism.”

The mask requirements are pretty much gone everywhere. Even in California, the state Republicans seem to hate, doctors' offices don't require a mask, so what the f*ck is she talking about?

Tostito Laxative seems haunted. She should have tweeted, "I see dead masks."

 Imani Gandy 

@AngryBlackLady

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We need a palate cleanser: I’m Tainted Labia. Nice to make your acquaintance.

Frances Langum contributed the Tomato Lozenge names to this post.