1. MLK day. I gotta work today. Most people on the board I assume are working. Every year on MLK day, I try to read the I have a dream speech and parse bits to think about. Today this line rings heavy:
"I have a dream that one day on the red hills of Georgia, the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood."
I highlight that line because of the division that I think, at least in my life, has increased in the past 10 years. Today is not the day where these two groups could break bread together. I don't think racial discrimination may have gotten worse, but the division has definitely increased. People blame Trump, GOP, Dems, the media, social media (I blame the last 2), but the truth is that we crave it. Those systems wouldn't increase it if we didn't gravitate towards it. They feed our gluttonous appetite for more of it and thus in turn, we get more, like a heroin addict with a needle, except the dealer keeps giving you more until you are addicted beyond repair or you die. We like to blame the other side, it's their fault, we don't criticize our tribe. This is the one characteristic that both tribes are guilty. I always go back to the movie American History X, because Derek Vinyard didn't change his nazi views because he was shamed. He didn't change because he had the hell beat out of him. He changed because a black man whom he worked the laundry with reached out to him and eventually broke down that barrier. Not by telling him how wrong he was, etc. But just by finding common ground and a little humor. I urge you to watch the Laundry Scene. Don't you miss that smell. That common ground, "A woman." If you have NY Times subscription, this will be one of your best reads today. What if Instead of Calling People Out, We Called Them In?
2. Biden to cancel Keystone Pipeline permit. What a freaking nightmare. Obama cancels, Trump grants, courts, time, money, etc. What a freaking nightmare. Why would anyone invest here with this back and forth control. I think the original railroad lines went through this stuff.
3. It's funny that I was criticized for a stupid comparison of Verizon, AT&T, Comcast banning companies that were like Parler, etc. Well on CNN's Brian Stelter program, the commentator and Brian argued that those cable providers should be pressured to remove Newsmax and OAN. I suspect FoxNews will be included as well. Here's the thing, if you are going to punish misinformation, then you have to do it across all boards, like CNN and the Trump Koi Fish pond BS. They are all pushing lies and manipulation. In my opinion, you either enforce it across the board, or you let them all do it. I think the policing in our system can't accomplish blocking all misinformation, so in my opinion, you let it all go. The US is not immune to conspiracies of misinformation. Many people believe the holocaust didn't happen, or 9/11 was an inside job, or that the moon landing was faked. The only way to beat these misinformations is by shining the light on the truth. This whole block the Stop the Steal hashtag or the Election was fraud blocking is a little nerve wracking to me. Because if we pick and choose what we allow to be spread, then misinformation become so over powerful by those who hold the keys to the filter. You know what other countries block stuff like this? China, Russia, etc. That's who you are asking us to become. Yes, these are private companies and some compare it to 1984 and many argue that 1984 was the government, not private companies, but the truth is that 1984 was THE PARTY leading the country, not a government or a private company. Russia wasn't controlled by one person, it was controlled by a collection of Oligarchs. What would you call those like Bezos, Zuckerberg, Dorsey, Gates. When they were just in private business, that's one thing, when their companies become instrumental in government control and setting policy, it is nerve wracking.
4. Thank god Biden Inauguration is this week. I cannot wait to get past all of this. I have never been more happy to get to the day after the inauguration. DC looks like a military base, yuck. It is crazy how crappy the response was to Jan 6th threats and then this week's response. Also it appears that investigation into lack of police at capitol for certification has taken a breather. It is very important that investigation happens. I don't have high hopes for it.
5. Trump Impeachment Trial for Inciting Insurrection. So I did some more reading on this. Here is probably the most important case for this matter. Brandenburg v. Ohio, a first amendment speech case. Brandenburg was a KKK leader and called for violence against black people. He was charged under an Ohio law and the SCOTUS over ruled. Here is the most important piece in the case, the Brandenburg Test:
With respect to #1, I don't think you can include Trump's speeches and tweets leading up to the 6th. Those aren't applicable under prong 1 and probably prong 2. This isn't a collection of the tweets thing, it basically comes down to his speech at the Capitol.
Here is another SCOTUS case applying the Brandenburg test:
In NAACP v. Claiborne Hardware Co.(1982), Charles Evers threatened violence against those who refused to boycott white businesses. The Supreme Court applied Brandenburg 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.”
So I watched the Trump speech that I could find, seems hard to find 1 complete speech and I looked at the highlights of Rudy Gugliani. I just don't think either Rudy or Trump convictions would be upheld by SCOTUS. I am interested to hear from other attorneys on this, but I just don't think this is enough to rise to the inciting prong. An example of what would, while standing in front of house and telling a crown with Torches "Burn Down This House NOW."
Here is the only snippet I see from Trump's speech that will be highlighted:
And we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.
Our exciting adventures and boldest endeavors have not yet begun. My fellow Americans, for our movement, for our children, and for our beloved country.
And I say this despite all that’s happened. The best is yet to come.
So we’re going to, we’re going to walk down Pennsylvania Avenue. I love Pennsylvania Avenue. And we’re going to the Capitol, and we’re going to try and give.
The Democrats are hopeless, they never vote for anything. Not even one vote. But we’re going to try and give our Republicans, the weak ones because the strong ones don’t need any of our help. We’re going to try and give them the kind of pride and boldness that they need to take back our country.
So let’s walk down Pennsylvania Avenue.
I want to thank you all. God bless you and God Bless America.
Thank you all for being here. This is incredible. Thank you very much. Thank you.
Is there enough there for the Brandenburg test? I just don't see it. I could have missed something in his speech. It is long, it is a ton of rambling and hard to read through and stay awake.
"I have a dream that one day on the red hills of Georgia, the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood."
I highlight that line because of the division that I think, at least in my life, has increased in the past 10 years. Today is not the day where these two groups could break bread together. I don't think racial discrimination may have gotten worse, but the division has definitely increased. People blame Trump, GOP, Dems, the media, social media (I blame the last 2), but the truth is that we crave it. Those systems wouldn't increase it if we didn't gravitate towards it. They feed our gluttonous appetite for more of it and thus in turn, we get more, like a heroin addict with a needle, except the dealer keeps giving you more until you are addicted beyond repair or you die. We like to blame the other side, it's their fault, we don't criticize our tribe. This is the one characteristic that both tribes are guilty. I always go back to the movie American History X, because Derek Vinyard didn't change his nazi views because he was shamed. He didn't change because he had the hell beat out of him. He changed because a black man whom he worked the laundry with reached out to him and eventually broke down that barrier. Not by telling him how wrong he was, etc. But just by finding common ground and a little humor. I urge you to watch the Laundry Scene. Don't you miss that smell. That common ground, "A woman." If you have NY Times subscription, this will be one of your best reads today. What if Instead of Calling People Out, We Called Them In?
2. Biden to cancel Keystone Pipeline permit. What a freaking nightmare. Obama cancels, Trump grants, courts, time, money, etc. What a freaking nightmare. Why would anyone invest here with this back and forth control. I think the original railroad lines went through this stuff.
3. It's funny that I was criticized for a stupid comparison of Verizon, AT&T, Comcast banning companies that were like Parler, etc. Well on CNN's Brian Stelter program, the commentator and Brian argued that those cable providers should be pressured to remove Newsmax and OAN. I suspect FoxNews will be included as well. Here's the thing, if you are going to punish misinformation, then you have to do it across all boards, like CNN and the Trump Koi Fish pond BS. They are all pushing lies and manipulation. In my opinion, you either enforce it across the board, or you let them all do it. I think the policing in our system can't accomplish blocking all misinformation, so in my opinion, you let it all go. The US is not immune to conspiracies of misinformation. Many people believe the holocaust didn't happen, or 9/11 was an inside job, or that the moon landing was faked. The only way to beat these misinformations is by shining the light on the truth. This whole block the Stop the Steal hashtag or the Election was fraud blocking is a little nerve wracking to me. Because if we pick and choose what we allow to be spread, then misinformation become so over powerful by those who hold the keys to the filter. You know what other countries block stuff like this? China, Russia, etc. That's who you are asking us to become. Yes, these are private companies and some compare it to 1984 and many argue that 1984 was the government, not private companies, but the truth is that 1984 was THE PARTY leading the country, not a government or a private company. Russia wasn't controlled by one person, it was controlled by a collection of Oligarchs. What would you call those like Bezos, Zuckerberg, Dorsey, Gates. When they were just in private business, that's one thing, when their companies become instrumental in government control and setting policy, it is nerve wracking.
4. Thank god Biden Inauguration is this week. I cannot wait to get past all of this. I have never been more happy to get to the day after the inauguration. DC looks like a military base, yuck. It is crazy how crappy the response was to Jan 6th threats and then this week's response. Also it appears that investigation into lack of police at capitol for certification has taken a breather. It is very important that investigation happens. I don't have high hopes for it.
5. Trump Impeachment Trial for Inciting Insurrection. So I did some more reading on this. Here is probably the most important case for this matter. Brandenburg v. Ohio, a first amendment speech case. Brandenburg was a KKK leader and called for violence against black people. He was charged under an Ohio law and the SCOTUS over ruled. Here is the most important piece in the case, the Brandenburg Test:
- The speech is “directed to inciting or producing imminent lawless action,” AND
- The speech is “likely to incite or produce such action.”
With respect to #1, I don't think you can include Trump's speeches and tweets leading up to the 6th. Those aren't applicable under prong 1 and probably prong 2. This isn't a collection of the tweets thing, it basically comes down to his speech at the Capitol.
Here is another SCOTUS case applying the Brandenburg test:
In NAACP v. Claiborne Hardware Co.(1982), Charles Evers threatened violence against those who refused to boycott white businesses. The Supreme Court applied Brandenburg 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.”
So I watched the Trump speech that I could find, seems hard to find 1 complete speech and I looked at the highlights of Rudy Gugliani. I just don't think either Rudy or Trump convictions would be upheld by SCOTUS. I am interested to hear from other attorneys on this, but I just don't think this is enough to rise to the inciting prong. An example of what would, while standing in front of house and telling a crown with Torches "Burn Down This House NOW."
Here is the only snippet I see from Trump's speech that will be highlighted:
And we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.
Our exciting adventures and boldest endeavors have not yet begun. My fellow Americans, for our movement, for our children, and for our beloved country.
And I say this despite all that’s happened. The best is yet to come.
So we’re going to, we’re going to walk down Pennsylvania Avenue. I love Pennsylvania Avenue. And we’re going to the Capitol, and we’re going to try and give.
The Democrats are hopeless, they never vote for anything. Not even one vote. But we’re going to try and give our Republicans, the weak ones because the strong ones don’t need any of our help. We’re going to try and give them the kind of pride and boldness that they need to take back our country.
So let’s walk down Pennsylvania Avenue.
I want to thank you all. God bless you and God Bless America.
Thank you all for being here. This is incredible. Thank you very much. Thank you.
Is there enough there for the Brandenburg test? I just don't see it. I could have missed something in his speech. It is long, it is a ton of rambling and hard to read through and stay awake.
