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Thursday, January 14, 2021

Today in cancel culture

One cheer only for President Trump's recorded statement on Wednesday urging his supporters to refrain from violence.

He loses one cheer because he never mentioned Biden or that the election has  been resolved and produced a legitimate result. Trump's calls for non-violence--that violence is inconsistent with the "movement" (a word he repeated)--ring hollow when he simultaneously continues to convince people that the election was illegal, fraudulent, and stolen, the greatest political crime in history. Some of these people believe it is 1776 because Trump has told them it is; to continue to say "it's 1776 but do not be violent" is incoherent.

He loses a second cheer for his final-minute detour into the First Amendment and the problem of "canceling." His obvious targets were Twitter/Amazon, corporations and other donors withholding money from GOP officeholders, and other businesses and institutions working to distance themselves (in sensible and silly ways) from him, his family, those who aided and abetted Trump through his presidency, and those who created the conditions in which the assault on the Capitol occurred. But he (and others) continue to ignore the way in which these actions are themselves an exercise of First Amendment rights to express, through disassociation and non-support, opprobrium. If donating and spending money to support an official or candidate is protected expression, then so must withholding that money. When Twitter and Amazon should be treated as unique actors, under current law they are not, so banning speakers or speech communities from their spaces is an act of expression. If a private sports organization such as the NFL can and should fire the sons of bitches who do something as offensive as kneeling during the national anthem, then a private sports organization such as the PGA can fire the business owned by a person who incited an assault on the legislative branch.

Sorry, this still is not the speech in which "Trump became President." He has 114 hours and 14 minutes as I draft this for that to happen.

Posted by Howard Wasserman on January 14, 2021 at 05:46 PM in First Amendment, Howard Wasserman, Teaching Law | Permalink


First, before I respond I wanted to thank you for taking the time to carry on this conversation with me. As one eloquent poster stated, I have a habit of coming off kind of 'a-holey' on here. It's usually not my intention, but I understand why it seems that way at times. So I just wanted you to know that I actually appreciate you taking the time to respond to me.


No. I'm talking to you, Joe. You have't even accepted that clear rebellion in Seattle *actually* is rebellion. And not only did state and local governments legitimize and aid this rebellion, they threatened to fight any federal attempt to arrest or put down the rebellion. I'm waiting for just half of the outrage to be aimed at a real rebellion.

There was no invasion of the Capitol. Though there are video of people breaking windows, there's no actual video of people violently breaching the Capitol. The only video evidence we have of people entering the Capitol was when they filed neatly through the doors that Capitol Police opened.

As I stated, the rebellion in Seattle was supported at the state and local level (which alone should cause your blood to run hot), and wasn't denounced with any fervor at all. It was allowed to go on for six weeks, my friend. Six weeks. People who lived in the rebellious zone were denied local and state and federal services for six weeks, my friend.

Again, there was no invasion of the U.S. Capitol (at least, not from any video evidence I have seen). You may *want* that to be insurrection, and maybe it *should* be insurrection, but it's not. I'd invite you to look at my latest reply on GM's post (towards the bottom). This is the perfect opportunity to revise the laws on insurrection and rebellion.

But we can't apply them haphazardly and after simply ignoring the rebellion in Seattle, it's best if people admitted they made a mistake there, admit that their reaction here has been a little over the top, and use this to effect a revision and clarification of the legal definitions of insurrection and rebellion.

After all, charges that serious should be rather clear-cut.

Posted by: thegreatdisappointment | Jan 19, 2021 7:15:19 PM

"Sorry, Joe, we can't haphazardly enforce laws against something as serious as insurrection or sedition"

Are you talking to some other Joe who dissented from this principle?

"What happened in Seattle *actually* meets the definitions of seditious conspiracy and insurrection."

Invading the U.S. Capitol to stop the count of the next POTUS counts as insurrection.

Again, Mitch McConnell et. al. realizes this. It isn't just something cited by liberal media or liberal law professors or something. GM another one of our hosts here spells out some reasons why in his Lawfare article.

"And yet, not only was there no outcry"

There was criticism from various parties though LOOK A SQUIRREL again doesn't erase what was just said.

"So yes, some really serious stuff re: sedition and insurrection went down recently. But it wasn't at the Capitol Building. It was in Seattle."

Invading the U.S. Capitol to stop the count is insurrection and/or sedition, even without more and more evidence coming out of the breadth of their intentions.

Posted by: Joe | Jan 19, 2021 3:54:08 PM

Sorry, Joe, we can't haphazardly enforce laws against something as serious as insurrection or sedition.

What happened in Seattle *actually* meets the definitions of seditious conspiracy and insurrection. And yet, not only was there no outcry, and not only did a local and state government legitimize and aid the insurrectionists, both state and local leaders threatened to fight against any federal attempt to remove or arrest the insurrectionists.

So yes, some really serious stuff re: sedition and insurrection went down recently. But it wasn't at the Capitol Building. It was in Seattle.

And you didn't say a word.

Posted by: thegreatdisappointment | Jan 18, 2021 4:21:29 PM

There is no hypocrisy actually shown.

The comparison is patently wrong. I can use a cruder word but I won't.

The near thing of people up to and including Vice President Pence coming to hard based on things aided and abetted for months by Trump et. al. is being clarified more and more.

But, something something liberals.

Posted by: Joe | Jan 17, 2021 12:48:02 PM

Those who are subject to this ostracism are said to be "canceled."

Posted by: Reach us here | Jan 16, 2021 10:41:08 AM

@ T Shakur,

I know. I don't expect it to change anything. I just want it documented on a record.

It's like the Olive Branch Petition. Nobody expected it to work, but they needed to be on the record.

Posted by: thegreatdisappointment | Jan 15, 2021 3:03:31 PM

Tdg: no one cares about hypocrisy anymore. It is dead. Let it go.

Posted by: T Shakur | Jan 15, 2021 1:17:04 PM

I think the actions of Amazon qua web-hosting service, which effectively shut down certain fora, present harder (of course non-First-Amendment) questions than the actions of Twitter, which merely remove a speaker from its popular but by no means sole or essential-to-disseminating-one's-message forum.

Posted by: Asher Steinberg | Jan 14, 2021 6:56:25 PM

Things liberal leaders (and law professors) allowed in 2020:

1. They allowed a band of people to take by force city, state, and federal property (see: 18 USC §2384)

2. They allowed this band to claim governance over this area (see: 18 USC §2385)

3. They allowed this band to set up a governing council, implicitly declaring the local, state, and federal government authority illegitimate (see: 18 USC §2385)

4. They allowed this band to interfere with the normal local, state, and federal law enforcement and emergency services, depriving people within that zone of rightful local, state, and federal services (see: 13 USC § 253)

5. They allowed the band to raise an armed force for the express reason of keeping out local, state, and federal officials (see: 18 USC §2383

6. They legitimized the band by negotiating with the seditious 'governing council'

7. They allowed nightly attacks against federal property and federal law enforcement

At no point did liberal leaders or law professors call these actions sedition or insurrection.

Posted by: thegreatdisappointment | Jan 14, 2021 6:19:58 PM

"I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard."

- Donald Trump, Jan. 6

Posted by: thegreatdisappointment | Jan 14, 2021 5:49:05 PM

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