TIRED: Stephen Bannon becomes a desert hobo, living with a coyote in a refrigerator box out behind the dumpsters of the Clown Motel in Tenopah, NV.
WIRED: Stephen Bannon shares a prison cell with a man named Coyote, who snores and has massive flatulence.
Any public comment from Christopher Wray? My search results were just a wall of links about Twitter suspending Bannon.
I disagree; what Bannon said would fall within Brandenberg if social media is considered the same as speaking to a crowd where all the principals are within view (since the “speaker” can see who the audience is and the specific target). In the discussion around the case, that was conceived as an example of incitement; a speaker telling a crowd of people to attack a specific target. If you treat social media as a public space, a poster’s followers as the crowd, and his assertion that specific people have specific violent actions taken against them, then the only question is whether the speaker had reason to expect that the audience could carry out those actions. In this case, all of those elements are fulfilled.
There’s no need to address your hypothetical, because it doesn’t meet those criteria.
And imminence isn’t just about time; it’s also about specificity of both the target and the violent actions. Bannon was very specific about both.
With all due respect, this isn’t a terribly close case when it comes to existing First Amendment law. I understand and respect all the reasoning you’ve given about why you disagree with the outcome under that law, but it’s still pretty clear that under Brandenburg, there is no reasonable chance that this could be criminally punished. This is pretty well in line with a pretty well-developed body of law over the last 50 years. And to not hide the ball, I’m not a 1A lawyer, but I am a lawyer who feels pretty good about my education on this and follows 1A law pretty closely. I’ve seen several prominent 1A lawyers talking about this today, and to a person they agree that this isn’t a close call. If there is someone in that field who disagrees, I’d certainly be interested in their reasoning, though.
That’s not quite correct. The imminence prong of the Brandenburg test is specifically tied to the immediacy of the lawless conduct it is encouraging. The SC made that clear in Hess, which followed Brandenburg, explicitly ruling that “advocacy of illegal action at some indefinite future time” could not be criminalized.
You’re right about the need for a clear link between the speech and the action, though. It has to be likely that the speech will produce the lawless action; the cliched hypothetical is that it’s not incitement if you stand up in front of a group of nuns, point to the police car, and scream that you want them to torch it.
Could you explain how my hypothetical differs from the situation re: Bannon? I’m not being obtuse, I promise, but I’m not sure I see any meaningful difference, other than my addition of bad facts that someone actually burned down a GOP office.
Oh, sure: specific actors, specific actions, specific targets. He identified the targets by name, not generically; specific acts (beheading, with the added detail of putting the heads on piles outside the White House); specific actors is more vague, but the main difference with social media vs print or broadcast media is that the speaker knows at least some of the audience.
Going back to Brandenburg- I get that you definitely have more expertise in this field. My understanding, so please correct me if I’m wrong; if someone speaking to a crowd points someone out and yells, “kill him!” and they do, that’s clear-cut incitement, plus a host of other likely charges. Right?
My point about this situation with Bannon is that it doesn’t follow any previous test of Brandenburg, because those were all based on broadcast or print media. Social media is fundamentally different in that it is immediate and the speaker knows who is in the audience.
I think you are right on all of the factors you bring up about specificity, and I agree that digital media takes the speaker into a more immediate relationship with audience. Where the test breaks down is the imminence of the lawless action.
As it is, the lawless action he is advocating must necessarily happen at some indefinite point in the future. That’s the part that doesn’t pass the test. If Bannon was directing the speech a group of MAGA chuds with knives in the same room as the targets of his threats, it would be a much different situation.
When the court looks at “imminence,” in this context, it means seconds or maybe minutes. Hours and days break that chain.
ETA: this is a good example of the kind of thing that does qualify as incitement: https://www.cnn.com/2020/10/12/us/harold-heshy-tischler-custody-orthodox-jewish-protests-new-york/index.html
Bannon knows who listens to him. The likes of Proud Boys etc who are clearly capable of following up on calls to violence.
But it’s not imminence of results; it’s imminence of lawless action. If the inciting speech starts the chain of events, that would satisfy imminence. It doesn’t start a clock, “whelp, the target isn’t dead yet, so it wasn’t imminent. Oh, now he is, but it just missed the buzzer.”
Another example: Rush Limbaugh is doing his radio show. Someone calls in, names Frank. Frank complains to Rush about his neighbor, Ed, whose dog keeps crapping on Frank’s lawn.
Rush: “Do you have a gun, Frank?”
Frank: “Yes I do.”
Rush: “Frank, you should go shoot your neighbor, Ed”
Frank: “Thanks, Rush!”
Frank goes to get his gun, but is out of ammo. He goes to the store the next morning, buys the ammo, comes home, loads the gun, but Ed isn’t home. Early evening comes along and Ed gets home from work. Frank walks over and shoots Ed.
Is that imminence? Hell yeah, by any interpretation of Brandenburg.
That’s what this Bannon situation is. He suggested immediate and specific violent actions against specific targets to a group who he knew were capable of initiating immediate lawless action. Does it matter if the person is standing next to Fauci at the time, or whether they have to look up his address, drive eight hours to get there, and stake it out until he is exposed? No. The lawless action starts when the action that culminates in violence is initiated, not when the violence is realized.
IMO.
As an aside, I find it very interesting that in many articles regarding this matter Wray is left out all together.
That is probably because it starts to stretch the imagination to think even a Boogaloo chucklehead could get close enough to the Director of the FBI to behead him.
No, that’s not correct. That chain of events to the lawless action needs to be essentially immediate. It is explicitly NOT satisfied by just showing a plausible chain of causality.
It absolutely does. That is the heart of what “imminence” means for this test. All that stuff you described is, by definition in this context, not imminent. It’s been pretty settled law for 50 years & directly what Hess confirmed.
If there is a case you’re aware of contrary to what Hess made clear from Brandenburg, I would be glad to reconsider my position.
Definitely. For the Brandenburg test, though, that doesn’t necessarily move it to unprotected status. If that audience of Poor Boys was standing in immediate physical proximity to Fauci at the time Bannon knowingly directed his speech to them, it would be a lot different, that much I agree with.
I still don’t see how Hess changes imminence in this case. Hess involves the vagueness of the action suggested. Bannon‘s exhortation implies immediacy: “I’d put heads on pikes. Right. I’d put them at the two corners of the White House as a warning to federal bureaucrats. You either get with the program or you are gone.”
Honestly, to me the stretch is the medium, not the message. You’d have to find a fairly tech-savvy judge who understands what kind of follower data and metrics are available to a super user like Bannon, and how that translates to having a violent mob at one’s beck and call 24/7.
Also, lawless action is the whole sequence of events that make up a crime, not just the culmination of it. A murder doesn’t occur at the point of time when the victim’s heart stops beating. It starts when the murderer takes action to harm the victim.
To be clear, Hess doesn’t change any requirement, it just frames it clearly. I think from your last post you’re looking at this in a bit of a different context than courts do when looking at 1A issues. When courts apply Brandenburg test, that causal chain you’re pointing to is evidence against imminence, not in favor of it. That chain could definitely be evidence of civil or moral culpability, but it’s precisely what Brandenburg explains defeats an argument from the state to restrict speech.
If my explanation is unpersuasive, and it seems to be at this point, it may help to put it in this context and illustrate by absence: think about how many thousands of instances there have been on Twitter of people on all ends of the political spectrum saying ill advised thing of precisely this type about politicians or demonstrators or police or whoever—and how many of those folks ended up charged with incitement? And do you think the Trump administration would have availed itself of that option if it were available?
In any event, I’m out so take care & congrats to us all.
My feeling is that the on-its-face absurdity of “heads on pikes” renders it more a Game of Thrones/Medieval reference than a true threat, and if Bannon, disgraced and no longer in Trump’s cults’ good graces, actually has a violent mob at his beck and call I’ll eat my shoe. Bannon was a guest in Trump’s cult of personality, not a driver of it. Bannon is not the person who has nutters hanging on his every word. I have no doubt there are people who wouldn’t mind taking a shot at certain people in government, but considering all the animosity and threats Fauci has taken so far, there would be plenty of blame to go around if someone did take a shot at him.
I mean, I’ve probably heard “I want that person’s head on a pike!” a dozen or so times in my life in conversation, and not once was it anything besides complaining that someone needs to be fired.
He has replaced enough people that I feel confident saying that replacing a person with someone better isn’t really his style.
The white supremacist right wing all over the world right now continue to commit and plan serious acts of violence, including mass murder. Some have spoken admiring of Islamists who have beheaded people. Bannon has ties to these groups, and they listen to what he says. There have been serious threats to Fauci’s life. Context matters here.
We really need to stop pretending like the hard right and white supremacists are something we can ignore and that they’ll go away if we do so. They have and will kill people given the chance. It is a serious risk we should not ignore.
No; to the contrary, it is persuasive. Frustrating, but that’s on my end of things. I’m not frustrated with your perspective, but rather that courts have interpreted even the Brandenburg and Hess opinions that way, when a literal reading doesn’t really support it.
So I think that’s something that needs a tune-up for the digital age. The reason why even Bannon’s own lawyers (or former lawyers) are freaking out about this is that, due to it’s specificity, and due also to Bannon’s reach and platform, it’s a scary fucking threat. In the late ‘60s, there was no media in existence like social media. Even if some talking head on the evening national news flipped their shit and called for very specific, very targeted violence, it was still broadcast, with no idea who was watching or how they would react. In the contemporary world, if I’m an advertiser, I know pretty much exactly who my audience will be when I run a FB/IG/Twitter/Google ad, and can predict very closely what actions they will take as a result. I can precisely tailor my ad and placement to get the result I want - if I’m willing to pay for it. The same thing is true with politics. The law needs to be updated to reflect that there are, globally, hundreds of people with millions of followers, who are plugged in to get immediate notifications of everything that is posted. Many of those followers have the resources and Inclination to commit extreme violence. And getting them to do so is science, not guesswork.
