I made this decision for a number of reasons, only one of which is related to recent controversy.  As I said before, I don't judge anyone for deciding to stay on Substack, and I think a preference for a hands-off moderation stance is one of many reasonable approaches to complex and intractable problems.  To the contrary, I find the denunciations of people who stay here (or who leave) to be contrived and unreasonable.  In fact, I will still be on Substack as a co-host on Serious Trouble, which is hosted here, and I'm fine with that.  For my own personal blog, this is what's right for me.   I've changed platforms a dozen times writing under the Popehat name and may live to change a dozen more.  The new platform will let me make some design changes and be a little more "bloggy," for want of a better word.

Watch for the first Beehiiv post to follow this one today in a short while.

What makes a good lawyer? Is it arrogance? Peevishness? Obsession with minutiae? Capacity to endure being yelled at by elderly white men? At least one good suit? It is all of these things. But being a good lawyer shares a fundamental rule with being a good doctor: first, do no harm. Lawyers encounter people in crisis, and their first duty is not to make the crisis much worse.

This is a straightforward task if you stay in your own lane by practicing the sort of law you know, or relying heavily on more experienced lawyers to learn a new area. But lawyers who blunder alone into unfamiliar areas of law can make things catastrophically worse for clients. My favorite example is defamation law. Under exceptionally speech-protective American law, any defamation lawsuit faces a daunting array of legal barriers and pitfalls. It’s not rocket science, but a lawyer who doesn’t know the law will fail in flamboyant, expensive, and humiliating ways. Moreover, defamation cases proceed under the looming shadow of a crucial social law — the Streisand Effect. That’s the proposition that if you sue, or threaten to sue, over a nasty thing someone said about you, it will inevitably draw orders of magnitude more attention to that nasty thing.

It’s common — mundane, really — to see lawyers try their hand at a defamation case, fail miserably because they don’t understand the law, and utterly destroy their client’s reputation in the process. Today’s story is a prime example.

Nikko D’Ambrosio is a Chicago 33-year-old employed in the age-appropriate activity of wandering about society in a backwards hat trying to get laid. One of the young women he dated wrote about him on the Chicago chapter of a popular Facebook group called “Are We Dating The Same Guy,” a forum for women to commiserate about the men they date. Her gripes (as reflected in the exhibits to his eventual lawsuit, linked below) were, to my taste, rather mild: unflattering, but not outside what’s expected of modern manchildren. She said he was “clingy very fast,” that he “flaunted money very awkwardly,” that he “kept talking about how I don’t want to see his bad side,” and that he texted her from a different number after she blocked the first one. Another woman claimed D’Ambrosio had slept with her and then ghosted her. Yet another said she had heard that he sent a bunch of rude texts after a women declined to sleep with him. Still another referred to him as a “psycho.”

Most of these were statements of opinion (“psycho” without more is an opinion-based epithet, “clingy” and “awkward” are thoroughly opinion-based) and very difficult to establish as defamatory statements of fact. The claims that D’Ambrosio ghosted a woman after sleeping with her or texted another rudely after being rejected could be false statements of fact, and therefore potentially defamatory, but a sensible grown-up would walk them off.

Nikko D’Ambrosio was aggrieved. He needed good, competent advice. A sensible, competent lawyer would advise him that any defamation claim would face substantial legal challenges, that recovery was unlikely, and that the cost of litigation would be heavy. Just as importantly, a competent attorney would advise Nikko D’Ambrosio that suing over these statements would be permanently disastrous for his reputation, and that any such lawsuit would go viral. A competent defamation attorney would point out that this particular factual scenario — a dudebrah with a not-common name suing women for more or less calling him a dudebrah — would be unusually bad for his online reputation, elevating him into the immortal pantheon of permanently infamous dudebrahs, a sort of Pluto of Petulance, an Ares of Assholery. Nikko D’Ambrosio needed a wise counselor.

But Nikko D’Ambrosio went to The Trent Firm and hired two guys named Marc Trent and Daniel Nikolic, and they gave him absolutely abysmal advice. If they told him about the Streisand Effect — if — he didn’t listen. Instead, they filed a stunningly terrible federal lawsuit on his behalf on the United States District Court for the Northern District of Illinois, suing a few dozen people and entities.

Very Dumb Lawsuit

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The complaint that the Trent Law Firm filed for Nikko D’Ambrosio is astoundingly sloppy and incompetent — and that assessment comes from me, an aficionado of bad lawyering, a misanthrope who seeks out and grumbles about amusingly incompetent lawsuits as a form of ritual self-abuse. It takes a lot to shock me, but these guys managed. They sued not just the disappointed woman who made the key comments about him, but two of her relatives, a host of other people with unspecified roles, and a long series of entities associated with Facebook. It is impossible to exaggerate how badly drafted this complaint is. These are just a few of its deficits:

• The caption of the lawsuit proclaims that it’s a class action, and D’Ambrosio’s lawyers have made comments suggesting that they see themselves as suing on behalf of “victims” other than D’Ambrosio. But other than the caption, the lawsuit contains not a single relevant allegation about being a class action. It doesn’t plead any of the factors necessary to qualify as a class action. It’s also obviously unsuited to be a class action: a class action requires a pool of plaintiffs with factually and legally similar claims, but defamation claims are by their nature very individual and context-specific, and each aggrieved man’s case would be very different depending on what was said about them.

• A federal court can only hear a case when it has jurisdiction over the case under federal law. The most common forms of federal jurisdiction are federal question jurisdiction — when the lawsuit asserts a federal statute as the basis for the claim — or diversity jurisdiction — when the plaintiffs come from a different state than the defendants and more than $75,000 is in dispute.1 D’Ambrosio’s lawyers assert diversity jurisdiction but make an utter dumpster fire out of it. They admit that both D’Ambrosio and at least one of the defendants come from Illinois, which defeats diversity jurisdiction. They admit they don’t know what state a bunch of the defendants come from. They identify a bunch of the defendants as limited liability companies, but don’t plead the facts necessary to identify those entities’ citizenship for purposes of diversity. This is the kind of thing that makes federal judges issue orders of their own accord saying, in judicial terms, “what the fuck is this shit?”

• The entire premise of the lawsuit is that a wide array of people and entities are legally responsible for unflattering things that a few women posted about Nikko D’Ambrosio. This theory ignores the existence of Section 230, the federal law that says that websites and their proprietors are not responsible for what users post there, even if they engage in moderation. Under Section 230, each woman who posts to “Are We Dating the Same Guy” can be held liable for what she posts, but Facebook, and the entities associated with Facebook, and moderators on Facebook groups, and people merely associated with the group, cannot be liable for what she posts. This complaint does not suggest that the lawyers who drafted it are familiar with Section 230, which would be the most important legal issue facing them.

• The complaint attaches screenshots of some posts — that’s how we know what the women said — but it utterly fails to specify what statements are alleged to be defamatory. The lawsuit claims that multiple women made defamatory statements, but doesn’t specify which defendants did what. Vagueness in legal threats is the hallmark of meritless thuggery. More importantly, the lawsuit claims in very general terms that the roughly 30 individual defendants and dozen entities are personally responsible for the (unspecified) defamatory statements, and implies it’s because the individuals were responsible for moderating or running the Facebook groups, but offers absolutely no specific facts supporting that legal conclusion. You can try that shit in state court, or maybe a food court, but in federal court you have to plead specific facts that plausibly support your legal conclusions. They haven’t. Just as one example, they’ve sued two people with the same last name as the woman in question — her parents? siblings? — but offer no facts to explain why they are named or what they did or how they could be liable.

The incompetence doesn’t end there, but I will. This may be the most badly drafted complaint by a lawyer I have seen this millennium. It will probably get dismissed for jurisdictional defects, quite possibly by the federal judge without anyone’s request. It is bad to the level of warranting sanctions, and likely to draw them even with a federal judiciary famously reluctant to sanction. If they fix the jurisdictional issue (probably by re-filing in state court or by ditching the defendants who defeat diversity jurisdiction) they’ll face an implacable host of other legal issues.

That’s the legal result. The social result is predictable. Nikko D’Ambrosio has gone viral. He is now That Guy. He will remain That Guy. He was concerned about his reputation as a member of the dating pool; now his reputation is a sullen narcissist who will bring a lunatic class action against you and your relatives if you say he’s clingy. I don’t pretend to be an expert on women but I think that may be a red flag. If there are any women attracted to it they have a really extremely specific kink.

Why is this happening? There are plenty of reasons. There’s a culture of entitlement and ego, among both litigants and lawyers. There’s the trend towards performative, headline-grabbing, but thoroughly bogus lawsuits as a lawyer marketing tool, encouraged by some of the most prominent politicians in the country. There’s the failure of courts to sanction lawyers who act like this. There’s the lack of a federal anti-SLAPP law that would allow the defendants to force these dipshits to pay their legal fees. There’s so much wrong with us.

Nikko D’Ambrosio was upset, but now he’s permanently infamous and likely to get poorer.

Members of the Trent Law Firm, dismiss this atrocity before you get sanctioned so hard your great-grandkids will come out with the judge’s bootprint on their asses. Nikko D’Ambrosio, go get a good malpractice lawyer.

My friend and classmate Mitch Epner, who is always worth reading, came to the rescue with a piquant story out of Wisconsin. Joe Gow, the Chancellor of the University of Wisconsin-La Crosse, has announced that he was fired for appearing in porn videos:

Gow told The Associated Press in a phone interview Thursday morning that regents had discovered that he and his wife, former UW-La Crosse professor Carmen Wilson, had been producing and appearing in pornographic videos.

He maintained that he never mentioned UW-La Crosse or his role at the university in any of the videos and the firing violated his free speech rights.

“My wife and I live in a country where we have a First Amendment,” he said. “We’re dealing with consensual adult sexuality. The regents are overreacting. They’re certainly not adhering to their own commitment to free speech or the First Amendment.”

So. Can they do that? The university I mean. Clearly Mr. Gow and his wife have a First Amendment right to produce, appear in, and distribute pornographic videos, so long as the videos do not stray into the very narrow and very rarely prosecuted First Amendment exception for obscenity. “Obscenity” for these purposes is material that meets the three-part Miller test, which may be summarized like this:

1. Whether the average person, applying contemporary adult community standards, finds that the matter, taken as a whole, appeals to prurient interests (i.e., an erotic, lascivious, abnormal, unhealthy, degrading, shameful, or morbid interest in nudity, sex, or excretion);

2. Whether the average person, applying contemporary adult community standards, finds that the matter depicts or describes sexual conduct in a patently offensive way (i.e., ultimate sexual acts, normal or perverted, actual or simulated, masturbation, excretory functions, lewd exhibition of the genitals, or sado-masochistic sexual abuse); and

3. Whether a reasonable person finds that the matter, taken as a whole, lacks serious literary, artistic, political, or scientific value.

I prefer Justice Potter Stewart’s summary “I know it when I see it,” but opinions vary.

Anyway in modern America, as the obscenity test is applied, it’s not plausible that a video of two people having sex is going to meet this standard unless they are really very inventively filthy. You may think it should qualify as obscene under this test, but there’s functionally no chance that it will be prosecuted.

But that’s about the government wearing its “sovereign” hat — acting as Chancellor Joe Gow’s civic authority with the power to prosecute. What about the government wearing its “employer” hat — can it fire him from his government job?

Here’s how we answer the question.

First, we ask if Mr. Gow was speaking as a private citizen or in his capacity as a government employee. If he was speaking on the job, the First Amendment doesn’t protect him from being fired. That allows the government to fire you for being insubordinate, bad at your job, and impolitic at representing the government. There’s an exception to this rule for public university professors engaged in teaching, who are still protected even though their job is to teach. Here, there’s no indication that performing in pornographic videos was within the scope of Mr. Gow’s job as Chancellor. It’s not UNLV after all.2 So far so good for Mr. Gow.

Second, we ask if Mr. Gow was expressing himself on a matter of public concern. Matters of purely private concern and grievance (like, say, whether the Inspector General’s secretary keeps microwaving fish during her lunch break and the whole office smells like ass) are not protected. Matters of public concern are traditionally issues that are of legitimate news interest. You could certainly make an argument that the public is interested in pornography, given its vigorous consumption of it. But it appears to me that the Supreme Court has already foreclosed that argument. In 2004 they held that a City of San Diego police officer was not expressing himself on a matter of public concern by selling pornographic videos of himself, and that therefore the First Amendment did not protect him from termination. So this part of the test is fatal to Mr. Gow’s First Amendment claim unless his videos include some sort of commentary or exploration of a newsworthy issue. I don’t know, like, it’s a satire of Wisconsin’s redistricting crisis with the title “either way voters get screwed.”

Third, if Mr. Gow’s claim survived, we ask whether the government did something to retaliate against the protected speech. Here that’s easy — they fired him and apparently told him they were firing him over the porn videos. That’s clear retaliation. Sometimes it’s not so simple if the retaliation is some minor discipline or counseling or an investigation. The test is whether . . . oh dear . . . the test is whether a person of ordinary firmness would be chilled from speaking by the employer’s actions.

Fourth, the government can defend itself by proving that it would inevitably have fired Mr. Gow for reasons unrelated to his speech even if he hadn’t spoken. There’s no indication that defense applies here.

Fifth, if Mr. Gow’s claim still survives the analysis, then a court must engage in a balancing test, weighing the employee’s interest in their free speech against the government employer’s interest in workplace harmony and effective operation. Here, the fact that Mr. Gow’s job of Chancellor requires him to represent the university as its public face, and interact with alumni, donors, and the state legislature, probably plays a determinative role. Even if a court found that Mr. Gow’s pornographic videos represented speech on a matter of public concern, it would likely find that the university could fire him on the grounds that appearing in the videos was detrimental to his public role and therefore to the university. That’s how several courts have ruled — for instance, finding that sheriff’s deputies’ appearance in pornographic videos undermined their fitness and the reputation of the department. You could say that this analysis reflects a prudish and outdated attitude towards sex and/or pornography, but the point is that it’s a very practical and plausible concern about the reaction of the people Mr. Gow has to deal with on the job. (In recent years this balancing test often comes into play when public employees post racist garbage on social media and get fired, especially if they are in public-facing jobs where the public is supposed to rely on their professionalism and even-handedness.)

Remember that this test has nothing to do with whether Mr. Gow’s pornographic videos are protected from prosecution or lawsuits. Those represent Mr. Gow in his capacity as private citizen and the government in its capacity as sovereign. We’re talking about whether the government can discipline or fire him while wearing its employer hat. As you can see, the government has substantially more leeway to fire employees for speech than it would have to prosecute them for it. That’s a feature, not a bug.

In short, if Mr. Gow sues over his termination, he will probably lose.

Substack having Nazis1 is currently the subject of debate. The Atlantic ran a piece about Substack’s “Nazi Problem” and recently a group of Substack writers wrote a group letter about it, asking Substack to get rid of the Nazis. They point out, correctly, that Substack authors have abandoned the platform before over its moderation choices and might again. On the other side, a bunch of Substack users offered a group letter saying they don’t want Substack to made content choices; they like a system where each writer and reader makes their own moderation choices. Substack’s co-founder Hamish McKenzie has now responded with a post confirming that it’s not going to moderate Nazis. So that seems to resolve that.

Site moderation is a big bundle of choices. As a writer and reader, I decide what’s important to me when I choose a site. Sometimes it’s about content I want to consume or avoid and fellow-travelers whose society I crave or despise. But sometimes it’s an ethos I want to endorse, or be seen as endorsing. Do I want to go on Twitter to signify that I am not a snowflake and that I am open to discussions of how the Jews created polio? Do I want to go on Mastodon to signify that I believe human perfection can be achieved through scolding? Do I want to go on LinkedIn and talk exclusively to people who hope to monetize my existence in their quest to be Deputy Assistant Regional Manager? Do I really only care if the app works on an iPad? It’s up to me and my array of values.

Site managers make choices too. What ethos do we want to signal, and what crowd will that attract, and how much money can we make from them? If we moderate content, will it turn into an expensive, thankless, all-consuming task? Will moderating some people (like Nazis) result in constant demands that we moderate a huge array of things that make people angry (like, say, posts that are either too supportive or not supportive enough of Palestinians)? Will it attract more people than it alienates? If we don’t moderate will the place turn into a notorious sewer? What’s our moderation brand?

That’s what Substack is up to: branding. They’re betting they attract more people than they repel with the “we don’t believe in Big Tech choosing what you can write or read” brand. They’re betting that the “we are the intellectual and moral superiors to the woke left” brand is profitable — and it is. They calculate that getting involved in constant disputes over what content is acceptable on their site would be a big waste of time and money and focus. Maybe they’re thinking that the Overton Window has shifted such that a substantial portion of mainstream American thought is kind of Nazi these days and that they can’t afford to lose that market.

Are they wrong?

No. As a matter of marketing, they’re not. The brand is effective and lucrative. The “we’re the noble defenders of civilization, upholding free thought from the onslaught of the woke hordes” sells these days. It sells even when free thought is actually under more profound assault from cynical and powerful and absolutely not woke forces. It sells even though — as I will get to in a minute — there’s a difference between tolerance and platforming.

They’re also not wrong to the extent they think that critics will never be satisfied and that getting into the business of moderating content is expensive and never-ending. It’s notable that the critics of Substack’s “Nazi problem” do not offer a specific definition of what content they’d moderate. It’s a know-it-if-you-see-it type of thing. Moreover, the critics of vigorous moderation are right about something — we are living in an area of near-constant demands to deplatform content. It’s easy to dismiss it as “oh that’s just people trying to protect vulnerable people from Nazis,” but that’s just not right. It’s often directed at less powerful people, and it’s often a tool of geopolitical disputes, as we see particularly powerfully since October 7. Demands come from humans and humans are frequently partisan, hypocritical assholes. It’s fair for Substack to complain that if they deplatform Nazis they’ll need to deal with a constant stream of other demands to deplatform content and be forced into the business of adjudicating speech about bitter disputes.

Substack’s also right that it’s built a platform that’s qualitatively different than many others. On Twitter, Nazis were constantly in my face, I had to painstakingly block them one by one, and the interface recommended that I follow them. Here I generally only encounter them if I look for them or, very occasionally, if one wanders into my comments for me to block. You can publish here and comment here and never encounter Nazis stuff here. With respect to my friend Mike Masnick, I think that makes it a bit less like his Nazi bar analogy and more like a Nazi-tolerant banquet hall. You can have your niece’s quinceañera or your parents’ 50th anniversary there and probably won’t feel much of an impact from the fact that they’re always booked solid on April 20 unless you think about it. Put another way, it’s more like selling your books or goods on Amazon if Amazon allowed lots of overtly Nazis stuff instead of just thinly veiled Nazi stuff.

So I am not inclined to denounce people who publish on Substack nor assert that fleeing Substack is the only moral choice. I think that reasonable minds can differ on the morality of renting a walled garden at an estate that also rents walled gardens to Nazis, especially when the other walled gardens on the market are all rife with their own problems. I think reasonable minds can differ on the ethos of creating a platform that makes a conscious decision not to moderate based on most content.

But that doesn’t mean I have to accept Substack’s attempt to convince me that its branding is about the good of humanity. It’s about money. Hamish McKenzie’s apologia for Substack’s approach is full of dubious (if common) arguments. Let’s address just a few.

First, McKenzie’s post consistently blurs the roles and functions of the state and the individual. For instance, he pushes the hoary trope that censoring Nazis just drives them underground where they are more dangerous: “But some people do hold those and other extreme views. Given that, we don't think that censorship (including through demonetizing publications) makes the problem go away—in fact, it makes it worse.” That may be true for the state, but is it really true for private actors? Do I make the Nazi problem worse by blocking Nazis who appear in my comments? Does a particular social media platform make Nazis worse by deciding that they, personally, are not going to host Nazis? How do you argue that, when there are a vast array of places for Nazis to post on the internet? Has Gab fallen? Is Truth Social no more?

McKenzie continues the blurring by suggesting that being platformed by private actors is a civil right: “We believe that supporting individual rights and civil liberties while subjecting ideas to open discourse is the best way to strip bad ideas of their power. We are committed to upholding and protecting freedom of expression, even when it hurts.” That’s fine, but nobody has the individual right, civil liberty, or freedom of expression to be on Substack if Substack doesn’t want them there. In fact that’s part of Substack’s freedom of expression and civil liberties — to build the type of community it wants, that expresses its values. If Substack’s values is “we publish everybody” (sort of, as noted below) that’s their right, but a different approach doesn’t reflect a lack of support for freedom of expression. McKenzie is begging the question — assuming his premise that support of freedom of expression requires Substack to accept Nazis, not just for the government to refrain from suppressing Nazis.

Moreover, McKenzie admits they don’t accept all speech. “Our content guidelines do have narrowly defined proscriptions, including a clause that prohibits incitements to violence.” That’s not quite right. Substack has exercised its right to make choices in what content to exclude, and bans speech that the First Amendment protects:

• Substack’s hate speech policy says “Substack cannot be used to publish content or fund initiatives that incite violence based on protected classes. Offending behavior includes credible threats of physical harm to people based on their race, ethnicity, national origin, religion, sex, gender identity, sexual orientation, age, disability or medical condition.” That’s ambiguously broader than the First Amendment standard, under which unprotected incitement is only speech intended and likely to cause imminent lawless action. It’s also deliberately open-ended, since it says “offending behavior includes.” It means whatever Substack chooses it to mean.

• Substack prohibits what’s commonly called “doxxing.” “You may not publish or post other people's private information (such as a personal phone number or home address) without their express authorization and permission. We also prohibit threatening to expose private information or incentivizing others to do so.” That’s fine. That’s Substack’s choice. But the First Amendment generally protects that conduct. Is it bad to find a terrible person and post their phone number so people can call and denounce them? Maybe. That’s a value judgment.

• Substack prohibits “harmful” activities: “We don’t allow content that promotes harmful or illegal activities, including material that advocates, threatens, or shows you causing harm to yourself, other people, or animals.” That’s vastly broader than the First Amendment exception for incitement. I think Substack is aiming here at stuff like crush videos and people who promote eating disorders, but those are protected by the First Amendment.

• Finally, the big one: “We don’t allow porn or sexually exploitative content on Substack, including any visual depictions of sexual acts for the sole purpose of sexual gratification. We do allow depictions of nudity for artistic, journalistic, or related purposes, as well as erotic literature, however, we have a strict no nudity policy for profile images.” This is perfectly fine. It’s within Substack’s First Amendment rights to choose this policy. It’s a choice about branding, about ease of moderation, and about vibe.

My point is not that any of these policies is objectionable. But, like the old joke goes, we’ve established what Substack is, now we’re just haggling over the price. Substack is engaging in transparent puffery when it brands itself as permitting offensive speech because the best way to handle offensive speech is to put it all out there to discuss. It’s simply not true. Substack has made a series of value judgments about which speech to permit and which speech not to permit. Substack would like you to believe that making judgments about content “for the sole purpose of sexual gratification,” or content promoting anorexia, is different than making judgment about Nazi content. In fact, that’s not a neutral, value-free choice. It’s a valued judgment by a platform that brands itself as not making valued judgments. Substack has decided that Nazis are okay and porn and doxxing isn’t. The fact that Substack is engaging in a common form of free-speech puffery offered by platforms doesn’t make it true.

This brings us to McKenzie’s discussion of his infamous promotion of the noxious Richard Hanania, in which he says he’s not promoting Nazis:

There also remains a criticism that Substack is promoting these fringe voices. This criticism appears to stem from my decision to host Richard Hanania, who was later outed as having once published extreme and racist views, on my podcast, The Active Voice. I didn’t know of those past writings at the time, and Hanania went on to disavow those views. While it has been uncomfortable and I probably would have done things differently with all the information in front of me, I ultimately don’t regret having him on the podcast. I think it’s important to engage with and understand a range of views even if—especially if—you disagree with them. Hanania is an influential voice for some in U.S. politics—his recent book, for instance, was published by HarperCollins—and there is value in knowing his arguments. The same applies to all other guests I have hosted on The Active Voice, including Hanania’s political opposites. 

Again, McKenzie is smuggling a host of value judgments under the pretense of not making value judgments, and it’s dishonest. There’s an infinite number of cranks and lunatics; choosing which ones to promote as plausible is a value judgment. There are people who are eagerly (if not necessarily sincerely) saying that Trump was elected in 2020 or that the Earth is flat; promoting them or not is a value judgment. We all make judgments all the time about which speech is within or without our circle of acceptable decency, speech that is worth sober debate on our own platforms. We should, at a minimum, be honest about it. If “racism is within my circle of decency and debate” is our point, we should make it openly, not evade it.

The suggestion that Hanania was not an overt racist before his pseudonymous background was published is an argument, but a very bad one. McKenzie has a choice of whom to invite on his podcast. McKenzie could have invited David Duke or Nick Fuentes, who are also prolific contributors to the public discourse, but selected Richard Hanania. Presumably McKenzie thinks that Hanania is a plausible, within-the-Overton-window voice and the others aren’t. That’s a value judgment that Hanania’s racism is inside-the-circle, and it’s one that promotes Hanania. Moreover, McKenzie’s choice to accept Hanania’s deeply dubious confessional to “reforming” also reflects a value judgment — a judgment in favor of slack-jawed credulity, in my view.

Taking everyone at their word that they’re not a Nazi, and deciding to accept that they mean racist things in non-racist ways, is a value judgment too. It’s a decision; you can’t plausibly spin it as a refusal to make a decision. So is the sentiment that tolerance requires not just refraining from government force but refraining from private association and judgment.

I dislike McKenzie’s apologia for Substack’s policy and for Richard Hanania because it has a sort of detached, sociopathic philosophy popular with techbrahs that all differences of opinion are equal — that a dispute over whether black people are human is like a dispute over the best programming language or whether Rocky Road is the best ice cream. This, too, is a value judgment. It’s not one I share.

In short: agreeing that Substack is an acceptable place to publish or comment does not require you to accept Substack’s sales puffery about it.

What will I do about it?

I haven’t decided. McKenzie’s apologia deeply annoys me because it treats me like I’m a moron. It’s the equivalent of yelling over the wall of my walled garden “don’t worry, those guys three gardens over really just like Hugo Boss, and also they have some points on tax policy.” There’s a difference between the ethos of “we’re a platform that’s decided not to make value judgments about offensive speech, if that’s okay with you, you’re welcome” and the ethos of “we’re a victim of cultural Marxism and we see that a lot of these guys are not that bad and we’re doing a service to humanity by platforming them and listen to their guest spot on my podcast.”

Previously I was thinking of monetizing this newsletter. A primary barrier was putting in the work to post much more regularly — at least 1.5 times a week, I think - to make it plausibly worthwhile. This episode is another significant strike against deciding to do so here, or staying here. The platform is convenient, easy to use, effective, and has a good interface and has a lot of content I like. I suspect there are going to be shitty things about any platform and that any platform will have content I hate. But I’m unhappy with this, and I’m rethinking my plans.

America faces many problems. The easy ones we solve or ignore. We struggle with the hard ones. Hard problems raise complex questions that lack glib, one-word answers. The stubborn thirst for simple answers to hard questions is bad for America. It’s anti-intellectual, pro-ignorance, pro-stupidity, pro-bigotry, pro-reactionary, pro-totalitarianism, pro-tyranny, pro-mob.

Take this week’s Congressional hearing about antisemitism on college campuses, titled “Holding Campus Leaders Accountable and Confronting Antisemitism.” A generous interpretation — a credulous one — would be that the hearing was designed to inquire why colleges aren’t protecting Jewish students from antisemitic harassment. A more realistic interpretation is that the hearing was a crass show trial primarily intended to convey that a wide variety of dissenting speech about Israel is inherently antisemitic, that American colleges are shitholes of evil liberalism, and that Democrats suck. Since Democrats do suck, they mostly cooperated.

The core Two-Minute Hate of this carnival was Rep. Elise Stefanik’s demand for yes-or-no answers to questions about whether policies at Harvard, Penn, and MIT would prohibit calling for the genocide of Jews. You might think Elise Stefanik is an unlikely standard-bearer for a crusade against antisemitism, given that she’s a repeat promoter of Great Replacement Theory, the antisemitic trope that Jews are bringing foreigners into America to undermine it. But if you bought Stefanik’s bullshit, you probably didn’t think that far. The college presidents did a rather clumsy job of saying, accurately but unconvincingly, that the answer depends on the context. Stefanik and every politician our loudmouth who wants you to hate and distrust college education and Palestinians pounced on it. And many of you fell for it. You — and I say this with love — absolute fucking dupes.

If you think the question “is calling for the genocide of a group against your policy” is an easy question with a one-word answer, you’re wrong. I understand you want the answer to be easy, but that’s not the same thing as it being easy.

Even though private colleges aren’t bound by the First Amendment, let’s first look at it as a First Amendment question, as the outer limits of what’s permitted. Is calling for the genocide of a group protected by the First Amendment? In America, the answer is yes, unless it also falls into an established First Amendment exception. The First Amendment protects advocacy of the moral, historical, and practical correctness of monstrous, immoral, and illegal things, unless they are:

• Conveyed as a true threat — that is a threat intended to be taken, and likely to be taken by a reasonable observer, as a sincere expression of intent to do harm to someone;

• Conveyed as incitement — that is, intended and likely to cause imminent lawless action;

• Part of a pattern of harassment — that is, directed to someone under protected circumstances (such as an employee or student) and meeting a stringent test for harassment, described below.

But what about college policies? Private colleges don’t have to follow the First Amendment, do they? With certain complex exceptions1 , no. But despite wall-to-wall propaganda about how American colleges routinely suppress any speech seen as remotely racist, many colleges have speech policies that are either vague or that protect speech rather broadly and robustly. Since Harvard was on the hot seat, let’s look at theirs. Here is the most recent update to their Nondiscrimination and Harassment policy:

Discriminatory harassment is unwelcome and offensive conduct that is based on an individual or group’s protected status. Discriminatory harassment may be considered to violate this policy when it is so severe or pervasive, and objectively offensive, that it creates a work, educational, or living environment that a reasonable person would consider intimidating, hostile, or abusive and denies the individual an equal opportunity to participate in the benefits of the workplace or the institution’s programs and activities.

These factors will be considered in assessing whether discriminatory harassment violates this policy:

• Frequency of the conduct

• Severity and pervasiveness of the conduct

• Whether it is physically threatening

• Degree to which the conduct interfered with an employee’s work performance or a student’s academic performance or ability to participate in or benefit from academic/campus programs and activities

• The relationship between the alleged harasser and the subject or subjects of the harassment.

That policy mirrors federal law - specifically, Title IX of the Education Amendments of 1972, which prohibits certain kinds of sex discrimination in education. There are parallel prohibitions on racial discrimination. In other words, Harvard prohibits speech that would violate federal educational anti-discrimination law. Just as the law gradually came to recognize sexual harassment as sex discrimination, sexual or racial harassment can be educational discrimination. But not everything that offends someone is illegal discrimination, at work or at school. As with the test for sexual harassment, the bar is set pretty high. Here’s how the Supreme Court described what speech or conduct would constitute harassment violating Title IX: “plaintiff must show harassment that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims' educational experience, that the victims are effectively denied equal access to an institution's resources and opportunities.” As you can see, Harvard’s policy echoes that language.

So. The university presidents were completely right. Whether calling for the genocide of the Jews, or any other group, violates a school’s policy depends on the context. For instance:

• Going to a campus chapter of Hillel and chanting “kill all Jews” is probably so severe, objectively offensive, and destructive of students’ educational experience that it violates the standard.

• If four students are talking politics in a dorm room, and one (by dramatic convention, a sophomore) says “we should just wipe all the Palestinians out,” and one of the four repeats that to someone else later, and that person is horrified, that is almost certainly not severe or pervasive or contextually destructive of the educational experience enough to qualify.

• If a professor uses the Israel-Palestinian conflict to discuss whether armed revolution is morally or legally justified, and presents the argument that armed revolution by Palestinians is justified, that almost certainly doesn’t violate the standard, although some people argue that it inherently calls for the genocide of the Jews.

• If a professor reads out sentiments expressed by different groups in a discussion of the war in Israel, and sentiment one the professor mentions is “kill the Jews,” that does not qualify. If you think that’s a silly example, you’re wrong.

• If one student makes a point of saying “all Jews should die” to a classmate every time they meet to express a sentiment about Israel, that’s probably severe and pervasive enough to qualify.

• If a student says, at a rally about Palestinian rights, “they want to kill all the Palestinians, but I say they should kill all the Jews first,” the context probably means that’s not severe, pervasive, or destructive of the educational experience enough, since it’s expressly conditional and political.

The list goes on and on, as complex and diverse as human communication and experience.

Stefanik’s purpose was transparent. No matter how the college presidents answered, she won. If they answered accurately — that the question depended on the context - she could shriek neeeeeerrrrrrdddd like a football player bullying a kid with glasses, and credulous people would eat it up. If the presidents answered inaccurately but simply “yes,” she could make her next point: then why aren’t you punishing people who advocate intifada? Why aren’t you expelling students for saying “from the river to the sea”? Why aren’t you punishing people for accusing Israel of genocide? That was her express, explicit purpose:

Congresswoman Stefanik: Dr. Kornbluth, at MIT, does calling for the genocide of Jews violate MIT’s code of conduct or rules regarding bullying and harassment? Yes or no?  

President Kornbluth: If targeted at individuals not making public statements. 

Congresswoman Stefanik: Yes or no, calling for the genocide of Jews does not constitute bullying and harassment? 

President Kornbluth: I have not heard calling for the genocide for Jews on our campus.

Congresswoman Stefanik: But you've heard chants for Intifada. 

There’s the rhetorical trick. Calling for Intifada is not the same as calling for the genocide of the Jews, and it’s just dishonest to say it is. Not all Jews are Israeli. Arguing that a particular group has a moral right to violent revolution against the power over it is not a call for the genocide of a group. The argument about when violent revolution is morally justified is ancient. Whether or not you agree that Israel is tyrannical or the Palestinians are unjustifiably oppressed, you can’t outlaw arguments that they are and pretend you’re anything but an absolute censor. The hearing was full of gripes like that — contentions that the slogan “from the river to the sea” should be outlawed and complaints that colleges had invited speakers with radical pro-Palestinian views. The crystal clear message was we think protecting Jews from antisemitism requires suppressing a broad range of speech from Them.

And many people bought it, and now it’s being used as part of the culture war against higher education, and too many of you fucking fell for it.

You might say I am being more than usually uncharitable in this post. That’s because I think people falling for Stefanik’s gambit have been more than usually gullible. They’ve become useful idiots for evil. They’ve become the dupes of people who will wave the banner of “fight antisemitism” while pushing Great Replacement Theory. They’ve become the patsies of people who transparently want to use Jews as an instrument and excuse to suppress speech they don’t like. They’ve become the creatures of cynical, dishonest politicians who want to treat hard things like they are simple to rile up mobs.

There is absolutely no doubt in my mind that antisemitism is on the rise in America in the wake of October 7th. It’s on the rise on college campuses. Sometimes criticism of Israel or defense of Palestinians is explicitly antisemitic, sometimes it is implicitly antisemitic, and sometimes it incorporates classic antisemitic tropes. Sometimes people of bad faith take advantage of the ambiguity. (I think some people use “from the river to the sea” that way, as a deliberately ambiguous taunt, a big brother’s back-seat ha-ha-I’m-not-touching-you, but with an implicit allusion to genocide.) I don’t blame Jews who feel under siege in America or on campus, even if I sometimes disagree with their interpretation of criticisms of Israel. Feelings are not right or wrong, and in the face of so much overt Jew-hatred, I understand a tendency to interpret ambiguous statements in the worst way possible. I think we should feel compassion and empathy for people who feel that way.

None of that is solved by pretending hard questions are easy. None of that is solved by letting demagogues and hucksters take advantage of the moment to push their agenda. None of that is solved by contributing to what America is becoming — stupider and meaner.

Edited to add: Predictably, Elise Stefanik has discovered that fighting antisemitism will require Congressional investigation of Diversity, Equity, and Inclusion programs on campus. Swell job, dupes everywhere.

Parenting is absurdly difficult. “It sure would be helpful,” I sometimes proclaim, “to have a clinical child psychologist to deal with this situation.” I say this to my wife the clinical child psychologist, who does not tend to react with an attitude of solace. Life is complex. Every kid is different, every situation is different. Why did I treat this kid differently for sneaking out than that kid? From that kid’s perspective it’s rank discrimination. From my perspective I caught that kid, covered in scratches from the hedge outside their window, making a deafening racket climbing through the wooden blinds, to find me sitting in their desk chair doomscrolling Facebook, saying “‘sup?” You lift the blinds and go under them, for Christ’s sake. And don’t get me started on the cameras. What is your strategy, exactly, in tiptoeing like a cartoon burglar past a security camera? Do you think it’s sound-activated? What did you expect to happen when you engaged in a prolonged examination of the camera to adjust its field of view while on camera? I feel disrespected by the lack of OpSec is what I’m saying, I guess.

I may have strayed from my point, which is about punishment envy. Institutions, like parents, punish. Sometimes they punish speech. Punishment can be take the form of actual official censorship, like suspending or firing someone for their speech, or the form of harsh criticism, like issuing a statement condemning someone’s speech. Perceived disparities in these punishments lead to tumult. Punishing leads to demands for more punishment.

We’ve been seeing a storm of institutional punishments since the Hamas attacks on Israel of October 7, 2023. They’ve multiplied in the wake of Israel’s military response against Gaza. We’ve seen some universities suspend and investigate professors for heated outbursts about the war, some ban Students for Justice in Palestine, and some issue issue statements implying — or sometimes outright claiming — that certain student or professor speech about the war is bigoted. Law firms have withdrawn offers to law students over their speech about the war and fired associates for criticizing the firms’ approach to the issue.

Some of that is clearly censorship, and you could call it “cancel culture” by a reasonable definition. But that’s not my point. My point is that the war has revived an old debate — should universities and other nominally non-political institutions get involved in addressing political controversies at all? Should they get involved in condemning offensive speech that doesn’t rise to the level of a violation of law? Will getting involved in that advance their missions, or impede them?

In 1967, the Kalven Commission at the University of Chicago issued a report and recommendation saying that universities should avoid getting involved in politics:

The instrument of dissent and criticism is the individual faculty member or the individual student. The university is the home and sponsor of critics; it is not itself the critic. It is, to go back once again to the classic phrase, a community of scholars. To perform its mission in the society, a university must sustain an extraordinary environment of freedom of inquiry and maintain an independence from political fashions, passions, and pressures. A university, if it is to be true to its faith in intellectual inquiry, must embrace, be hospitable to, and encourage the widest diversity of views within its own community.

The bitter disputes over Israel have revived this argument. Numerous commentators have argued that universities should adopt the Kalven policy of staying out of political discourse, leaving that for their faculty and students. It’s easy to see why. University engagement in the Israel-Gaza debate has led to widespread recrimination and condemnation. Critics suggest that university statements are too sympathetic to Israel, or too sympathetic to Palestinians; that condemning atrocities against one group excuses atrocities against the other; that condemnations of bigotry unfairly portray political criticism as racism; and that students who feel offended or even threatened are treated differently depending on their ethnicity or religion.

Students have demanded that other students, or professors, be punished for speech about the war. USC saw dueling petitions demanding the reinstatement or termination of a professor who confronted a pro-Palestine demonstration. Students have argued that failure to punish critics of Israel is putting Jewish students at risk and that failure to protect the critics is putting them at risk.

This is an old, well-known problem. It’s called “censorship envy.” The concept is that once an institution gets in the business of punishing speech, people will inevitably say “if you’re punishing that speech those people don’t like, why aren’t you punishing this speech that I don’t like?” We saw it, for instance, in Europe, where Muslims not unreasonably asked “if you are willing to punish denying the Holocaust, why aren’t you willing to punish vilifying the Prophet?” I think the term should be broadened to “punishment envy” to encompass institutional condemnation as well as official censorship. Since October 7th we’ve seen instance after instance of students claiming that a university condemned Hamas atrocities more vigorously than it did atrocities against Palestinians, and vice-versa. The impulse is the same: you’ve decided to get into this fight, so why don’t you fight that hard for the things I care about?

That’s a legitimate argument by the students. Universities, and their officials, have a First Amendment right to weigh in on public issues. But I think that institutional hubris prevents them from realizing that once they start they can’t stop. Once universities commit to weighing in, it’s fair game to question how they chose when to do so, and to examine what issues or causes draw their greatest vigor. It’s fair game to ask “why did you seem more upset, use more paragraphs, devote more vivid condemnation about this offensive speech as opposed to last month’s offensive speech?” Moreover, once a university creates an apparatus whose job it is to weigh in on public issues, it will be naturally tempted to do so more and more. Iron itself draws a man to use it; a public relations department itself draws a university to comment. The best case scenario is that an institution, like a political campaign, will be forced to spend time and resources framing policies positions on every issue and handling the resulting backlash. The worst case scenario is what we are seeing now — constant bitter dispute over institutional bias towards brutally unsolvable situations.

Non-academic institutions like law firms face the same problems. When national business selling widgets “go woke” — to use the fatuous and dismissive term popular on the Right — they are probably doing so out of a calculation that it sells widgets. But institutions like law firms sell services much more complicated than widgets, and taking political positions on public issues is far more likely to impact their credibility as advocates and counselors. A client — or a judge — would be perfectly justified to ask “you fired that prospective associate who wrote that, but not the lawyer who wrote this — why is that? You weighed in on antisemitism but not on racism — why is that?” It’s buying trouble.

The answer here is absolutely not simple; the problem is as complex and fraught as are the political disputes to be avoided. First of all, even the Kalven report conceded that sometimes political issues arise which implicate “the very mission of the university and the values of free inquiry” and so justify university involvement. I think that advocates of the Kalven approach dramatically underestimate how hard that line is to draw. Certainly laws that restrict what can be taught in a university, or that impact tenure, are fair game for comment. What about affirmative action? What about student diversity? What about First Amendment law in general, that impacts everyone’s free inquiry equally? What about primary and secondary education, which impact the population of students from which the university draws? What about racial slurs and racial harassment towards students that don’t rise to the level of abuse outside the protection of the First Amendment?

Second, while “neutrality” may be neutral, demands for neutrality usually aren’t. Popular demands for soda and beer brands to stay out of politics didn’t arise because the brands displayed American flags or “support our troops” advertisements; they arose because brands treated traditionally despised folks as fully American and fully human. The University of Chicago didn’t commission the Kalven Committee out of some abstract and intellectual concern for the ideal of neutrality; it did so because of pressure to weigh in in a very specific historic and cultural context — the Civil Rights movement and the Vietnam War1. Most modern demands for university neutrality arise from debate on war, race, class, and sexuality. Many people — most? — demanding neutrality mean they want universities to shut up with the positions they don’t like. You can’t assume that saying you’re neutral will be received as a neutral decision.

Rather than a probably unworkable hard-and-fast rule, I think university and institutional neutrality is better suited as a sensibility, an ethos. It’s a vibe. Its root should be humility. “This institution isn’t in a position to solve an ancient and intractable problem; we empower scholars and students to strive to do so” is an ethos. “This law firm doesn’t tell clients what their values should be, it seeks to advocate for them vigorously and competently” is an ethos. “This controversy is not suitable for a press release. It requires careful study and advocacy, like our members provide” is an ethos. It’s hard work. It takes discipline. It takes good-faith debate: is this, or is it not, an issue on which the university should take a position? To the extent institutions pursue it, it will take decades of patient explaining to overcome the social expectation that the institution will take sides.

No easy answers today. Sorry. Fresh out.

No more. Now I see the light. How could I not? Great beams of it have shone upon my eyes, cast by the best thinkers of our society. My inflexible dogmatism is no match for them. The insubstantial line I imagined between government force and private criticism has vanished like a mist. Now I see. Criticism is censorship. Is not all censorship speech? “You’re under arrest” is speech. “We the jury find the defendant guilty” is speech. “You’ve been found liable for defamation” is speech. We all agree those things are censorship. So how can brutal speech like “racist” and “antisemite” and “lunatic” and “disconcertingly puffy serial divorcee” and “I think I will chose to advertise elsewhere” not be censorship?

It took better men — titans of America, really — to show me. Elon Musk, billionaire scientific genius and social philosopher and equestrian innovator has explained it. As it was necessary to destroy Bến Tre to save it, it’s necessary to sue journalists for criticizing the way you exercise freedom of speech, to protect your right to utter that speech without anyone reacting negatively. It’s simple, and pure, like a koan. I am indebted, too, to Texas Attorney General Ken Paxton — the stalwart of the speech-defending Federalist Society — who showed me that it’s necessary to use the apparatus of government to protect free speech by criminally investigating people who oppose and suppress free speech by criticizing how someone else uses it.

Musk and Paxton have converted me; they have immersed me in the baptismal font of free speech culture. I see that my focus has been wrong. I have been preoccupied with petty concerns — is this speech protected by the First Amendment? — and not with the more fundamental and important question: “does this speech make someone else feel uncomfortable about what they just said?”

I see now I was wrong, badly wrong, shamefully wrong, about recent events on Elon Musk’s platform X. I reacted with scorn and contempt and abuse when Elon Musk endorsed the notorious anti-Semitic theory that Jews are importing foreign minorities to undermine the West. I engaged in abuse, not debate. But in a civilized society, that’s not how we proceed. We debate. Until we know all of the facts, how do we know whether or not Jews are pushing hatred of white people and importing hordes of minorities to undermine Western countries? Did these critics, these journalists, these bloggers, these advertisers, show that they cared about truth by saying “interesting point, Elon — which Jews are doing that, and how are they doing it, and are some of the minority hordes worse than others?” The debate would be enriched by the many thoughtful participants in the marketplace of ideas who have signified their eagerness for dialogue by paying $8 per month for a blue check. Instead, the scorn and abuse heaped on Elon Musk threatens to lead to less speech — to fewer people talking about how Jews are ruining America.

Trying to shun or shame Elon Musk for his speech is arrogant. It supposes you know everything and can’t be wrong. You believe that there is a not a cabal of Jews seeking to overthrow the Christian West by importing foreigners with different values. Are you infallible? Are you God? No. You’re capable of being wrong. You don’t know for sure what happens after we die. You don’t know whether string theory is right. You can’t be sure which tax policy will produce the best results. You don’t know if Judy Blume actually died trying to sneak a guy named Ahmed into your garage. So since you can be wrong — since you’ve been wrong before — where do you get off criticizing Elon Musk? Where do you get off, Apple, pulling your advertising dollars, when the iTunes app has always sucked, showing your fallibility?

Does condemning Elon Musk for his speech demonstrate a willingness to live and let live, share our institutions with those who hold differing views, and refuse to let beliefs divide us? It does not. It shows the contrary. It shows an entitled, brutish intolerance, saying “this country isn’t big enough for you, who argue we are a historically evil pernicious force seeking to undermine America from within, and us, who argue we aren’t.” It seeks to shun.

But the core of free speech culture is that we must seek to persuade rather than to shun— to succeed in the marketplace of ideas, which is as efficient and reliable as the economic marketplace that empowered Elon Musk to pay $44 billion for Twitter. You may think that boycotts and other pressure on advertisers are “speech,” just because every court says so and because they’ve traditionally been used by civil rights activists and Gandhi and farm workers and labor unions and stuff. You’ve been deluded. They’re not. When the world’s richest man tells 160 million X followers that Jews are importing non-whites to undermine America, that’s speech; when you tell IBM to stop promoting that by advertisements, that’s coercion. It inevitably harms the marketplace by reducing the number of billionaires willing to enter the debate over the truth of Great Replacement Theory. It’s anti-speech, and what else is the law there for but to protect speech from anti-speech things?

It’s also deeply dangerous. It promotes covert evil. Free speech culture helps us know what ideas are out there, even the worst ones. If billionaires are shamed, shunned, or economically pressured when they articulate historic antisemitic tropes, how will we know which billionaires believe in antisemitic tropes? We can’t all just ask Clarence Thomas; that’s impractical.

Or take Pizzagate. Is it right, or just, that the media and the conformist masses should rebuke Elon Musk simply for expressing receptiveness to a theory that key Democrats are operating a pedophile ring out of the basement of a pizza restaurant? It is not. The way for a healthy society to address such a question is through searching and open debate: Elon Musk, Mike Cernovich, and 4chan user kill@llniqqrs on one side of the proposition and, other the other side, ready to provide convincing evidence to disprove the proposition, any detractors. We should not allow one side of the debate to rule certain topics “off limits” in the marketplace of ideas, whether by ad hominem attacks or by manipulative tactics like asserting that the pizza place does not technically, physically, have a basement.

I’ve travelled part of the way down this path before. I’ve noted that Americans — including college students — sometimes engage in fatuous and intolerant demands to use official power to silence dissent, and sometimes imagine that they have the right not just to criticize speech but to prevent it from happening. But I have evaluated risks wrong. I have struggled with the pedantic error of legalism — of thinking that it’s somehow worse for a billionaire to act in concert with an Attorney General to use civil and criminal force to punish journalists than it is to tolerate a culture where people can socially sanction a billionaire for saying Jews are using dark people to destroy America. I regret the error.

As I join the free speech warriors who have spoken out bravely against cancel culture — Elon Musk, Donald Trump, Ron DeSantis — I am reminded of the most fundamental precept of free speech culture: we must always presume that everyone is arguing in good faith, and that everyone wants a fair debate. We must treat each argument with seriousness and dignity, no matter who speaks it, or how. We cannot be confined by our prejudgments. As free speech advocate Kanye West put it, “How I’m antisemitic? I just fucked a Jewish bitch.” That is the only path to the society we deserve.

I was wrong. But it’s all right, everything is all right, my struggle is finished. I have won the victory over myself. I love free speech culture.

Now, surely part of that is a pitch — Musk wants you to pay for Twitter Premium (sorry, X premium) so you don’t have to see ads while you consume X’s content. But there’s a big dollop of sincerity too. Elon Musk genuinely feels that advertisers are a threat to free speech. Why? Because many advertisers fled X after Musk eagerly endorsed a bigot’s articulation of anti-Semitic theories, including that Jews promote hatred of whites and that Jews are importing “hordes of minorities.” Unsurprisingly, many companies aren’t cool with that. That’s a mix of corporate leadership thinking that such bigotry is bad business and thinking that it’s immoral.

Private companies have a First Amendment right to make such a decision. They have the right to express their values — and choose their marketing strategy — by deciding what kind of media content to promote. They have freedom of association to refrain from advertising on platforms that repulse their customers. Those rights are held both by the corporate advertisers and by the individuals making decisions for them. Elon Musk’s sullen yawp amounts to a claim that he has a right for companies to sponsor his speech, no matter what he says. That’s nonsense, both legally and philosophically.

It doesn’t stop there. Musk is also a fan of the theory that when he speaks, your criticism of him violates his rights. His latest articulation of this theory came after Media Matters published an article claiming that X is running ads for prominent companies next to bigoted content on X. Musk responded with an extravagant, mostly incoherent threat to file a “thermonuclear” lawsuit against Media Matters and its board and donors “to protect free speech,” whose criticism “seeks to undermine freedom of expression on our platform.”

Last Friday night Musk announced that X would sue Media Matters “the split second court opens on Monday.” I’m confident that Musk’s obliging attorney, Alex Spiro, knows that complaints in both San Francisco County Superior Court and the United States District Court for the Northern District of California may be electronically filed 24/7 these days. In fact I’m confident he has e-filing accounts for both courts. It may be Mr. Spiro didn’t see fit to tell that to Elon Musk Friday night. One sympathizes. Mr. Spire’s firm Quinn Emmanuel is as crowded with former federal prosecutors as a judicial convention, and carefully cultivates its reputation for being almost as good as it thinks it is. They’re excellent trial lawyers; just look at their advertisement saying so on the concourse at Burbank Airport.

Some might suggest that suing journalists to defend free speech sounds Orwellian and even unhinged. That’s because you haven’t considered that free speech also requires that journalists be prosecuted for fraud:

Just as the tree of liberty must occasionally be refreshed with the blood of patriots and tyrants, freedom of speech must occasionally be protected by an unemployed ghoul and a personality disordered Boer persuading a bland FedSoc apparatchik to pester journalists for questioning billionaires.

It would be easy to blame this contemptible nonsense on Elon Musk being socially inept, proudly ignorant, and grotesquely petulant. But when it comes to thinking that the right to free speech includes the right to silence others, Elon learned it by watching us, okay? He learned it by watching us.

“Your criticism violates my right to free speech” is a fatuous but common American sentiment. It has been for some time. We’ve long heard it from athletes, like John Rocker complaining of a “defective reality” in which free speech is a myth because we’ve lost the ability “to speak freely without fear of chastisement.” We’ve long heard it from entertainers, like Clint Eastwood complaining that he should be able to tell ethnic jokes without fearing he’ll be called “a racist,” or Kirk Cameron saying that he should be able to speak out condemning homosexuality without being “slandered” or “accused of hate speech.” Note all of those stories are more than a decade old; I raise them to demonstrate that this has been going on a while, and I’ve been complaining about it for a while.

“Criticism is censorship” has been a standard trope in politics and punditry even longer, and has persisted there even more consistently. Calling Trump a racist, we are frequently told, violates his free speech rights:

Pundits, academics, and politicians are all guilty of this. College presidents assert that students protesting studio executives are infringing on free speech. Senator Ron Johnson claims that criticizing his stance on Black Lives Matter amounts to “silencing him,” and Justice Samuel Alito suggests that criticizing anti-gay political and legal positions impairs free speech. The trope is so embedded in the culture that even people with admirable records of free speech advocacy convince themselves that people protesting them are against free speech as opposed to disagreeing with and criticizing their speech.

Regrettably, the notion that criticism is censorship has been encouraged by the dialogue about “cancel culture.” The New York Times Editorial Board proclaims Americans are losing “ right to speak their minds and voice their opinions in public without fear of being shamed or shunned.” An earnest but painfully vague letter from literary luminaries in Harper’s conflates “restriction of debate, whether by a repressive government or an intolerant society.” People who are sincerely concerned about free expression, people I admire and respect, argue that we must avoid “manipulative” and “ad hominem” criticism to protect speech — without really engaging the problem that both the critic and the criticized are people with free speech rights and interests.

I’ve argued that if “cancel culture” dialogue is to actually promote free speech — as opposed to just picking sides and choosing whose speech we care about, who should feel comfortable speaking — it needs to acknowledge the speech interests of everyone involved and be more specific, even to the point of pedantry. That’s not happening. If anything, the dialogue is getting muddier. Witness the disastrous discussions about campus speech about the war in Israel, characterized by commentators claiming back and forth that their rights are infringed by other people’s speech about war and death, that criticism of their speech about the war violates their rights.

I’m not optimistic, frankly. Elon Musk’s gripe that advertisers are attacking free speech, and that journalists are infringing speech by criticizing it, has become perfectly plausible to many Americans. In my view, too many critics of “cancel culture” are recklessly promoting not the speech of the powerless, but the censorious resentment of the powerful.

Georgia RICO’s statute contains a core prohibition:

It shall be unlawful for any person employed by or associated with any enterprise to conduct or participate in, directly or indirectly, such enterprise through a pattern of racketeering activity.

The indictment charges the defendants with violation of the conspiracy component of the statute:

It shall be unlawful for any person to conspire or endeavor to violate any of the provisions of subsection (a) or (b) of this Code section. A person violates this subsection when:

1. He or she together with one or more persons conspires to violate any of the provisions of subsection (a) or (b) of this Code section and any one or more of such persons commits any overt act to effect the object of the conspiracy;

After the preliminary charging language, the indictment launches into a 52-page, 161-act list of acts committed by the defendants:

This has led to much comment and confusion. Some of it is contrived and in bad faith, some of it reflects honest concern or confusion. The thrust of it is this: wait, some of the acts on that list aren’t crimes, are they? And aren’t some of them speech protected by the First Amendment? Here’s a not-good-faith example:

Political theater and propaganda aside, there are some reasonable questions here: how can a tweet (like act 101) or statements at a press conference (Act 3) be a crime?

The answer is that they’re not crimes — or, at least, that’s not what the indictment claims. They’re overt acts.

Overt Acts: Originally A Bulwark Against Tyranny, Now Mostly For Exposition

So what is an overt act?

A criminal conspiracy is an agreement by two or more people to do an illegal thing. An overt act is some step, however small, intended to promote that illegal goal. Many conspiracy laws require — like the Georgia RICO statute here — that the government prove that at least one member of the conspiracy committed one overt act. There’s no need to prove multiple overt acts, and no need to prove that each defendant committed one.

Why are overt acts a thing? The requirement is a reaction to the tyrannical experiences with laws that criminalized mere thought or discussion. For instance, the Treason Act of 1351 made it a crime to “compass or imagine the death of our Lord the King,” something that could be and was interpreted to cover mere discussions or idle talk without action. The Treason Act of 1351 gradually became understood to require proof of some overt act beyond mere talk, though there are disputes about whether that was mere tradition or a legal requirement, and about whether it reflected sensibilities about the adequacy of evidence of intent or some sort of minimum action requirement to qualify as a crime.

At any rate, the concept that conspiracy should require an overt act was well-developed at the time of the Constitution, as reflected in the Constitutions’ carefully narrow definition of treason:

No Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on Confession in open Court.

All of this reflected several traditions and sensibilities. The first was recent memory of how accusations of treason and conspiracy had roiled England and led to violence and tyranny. Another — given the notoriously hard-drinking life of the Founders — is that what a bunch of idiots agree to do in their cups, and what they are interested into putting into effect in the morning, are two very different things. As one scholarly work puts it:

Its primary purpose is to show the operation of the conspiracy. Put another way, the requirement of an overt act represents an acknowledgement that talk (the agreement) is cheap. A second purpose of the overt act is to provide a locus pœnitentiæ, or a chance for a conspirator to withdraw from the conspiracy without accruing any liability. The overt act requirement is intended to limit the definition of conspiracies and ensure that only people who have actually conspired are indicted. The requirement should, for example, prevent mere braggarts from being prosecuted for “agreeing” to rob a bank or kill a political figure with whom they particularly disagree.

So you can think of an overt act as a sort of evidentiary requirement, and overt acts as evidence of a criminal conspiracy, not as the crime themselves. These days the custom is for prosecutors to use the overt act requirement to tell the story of the case at length in the indictment. Prosecutors also use it as a gambit to make it more likely that evidence will be admitted at trial (it’s a strong case to admit evidence of something if you’ve called it out as an overt act), and often try to connect every defendant to an overt act, even though that’s not a requirement, just so the defendant can’t say at trial “look, I didn’t even commit an overt act.”

Overt Acts Are Evidence Of The Criminal Conspiracy, Not The Crime Themselves

Once you view overt acts as a sort of evidence, it’s easier to see why they don’t have to be crimes themselves, and why they can even be acts that would otherwise be not only legal but protected speech.

The First Amendment protects my right to indulge in nationalistic and racist rants against, say, the Belgians. If my friends and I engage in loud calls to kill all the Belgians, and walk up and down my Belgian neighbor’s house observing the entrances and exits, and if I ask my priest whether it is morally and scripturally appropriate to kill the Belgians, all of those things are legal and protected by the First Amendment. But if my Belgian neighbor winds up murdered in his bed, those things are all evidence that I did it and of my intent when I did it, and also potentially overt acts in a conspiracy with my anti-Belgian friends to do it.

American law is quite clear on this distinction. “The overt act, without proof of which a charge of conspiracy cannot be submitted to the jury, may be that of only a single one of the conspirators, and need not be itself a crime.” (Braverman v. United States, 317 U.S. 49 (1942). Georgia law is the same.

Somewhat less clear is the concept that an overt act — since it is only evidence of the criminal conspiracy, not the crime itself — may be speech protected by the First Amendment. Back 1957 in Justices Black and Douglas, two of the most important thinkers on the First Amendment, had a rip-snorting debate on this concept in the dissent to one of the anti-Communist cases, arguing rather persuasively that at the least the government should have to prove at least one overt act not protected by the First Amendment in order to convict someone of conspiracy. But the Supreme Court has not adopted that rule, and the current law seems to be this:

[I]t is not the "speech" that is made criminal, but rather the agreement, and whether the overt act is constitutionally protected speech would be irrelevant.

This has continued to be the rule, notably during the Great War On Terror:

Moreover, even if Abdel Rahman's words were protected speech, it is not his words but his agreement that is criminalized in the Count Two conspiracy. In United States ex rel. Epton v. Nenna, 446 F.2d 363 (2d Cir. 1971), the Court of Appeals rejected the argument that the defendant's "conviction for conspiracy to riot violated his rights under the first amendment because the overt acts alleged in the indictment were all constitutionally protected speech." Id. at 366. The Court of Appeals disagreed with the premise of the defendant's argument and concluded that, in fact, some of the overt acts were actually unprotected. Id. at 367. Additionally, however, the Court reasoned that, when a defendant is convicted of conspiracy to commit an unlawful act, "it is not the `speech' that is made criminal, but rather the agreement, and whether the overt act is constitutionally protected speech would be irrelevant." Id. at 368.

Is this right? Were Black and Douglas right in 1957? How, exactly, does this mesh with the complex and ill-defined First Amendment exception for speech inherent to criminal conduct? Hell if I know. But that, for now, is the law.

But Wait, There’s Also Racketeering Acts

So: to the extent the Georgia RICO indictment lists mundane and non-criminal things as overt acts, or even protected speech, that’s all perfectly legal, for better or worse. But Fani Willis has chosen to draft the indictment in a way that causes further complication and confusion by putting two different things in the same list of acts: overt acts in support of the conspiracy (which don’t have to be crimes) and racketeering acts (which do have to be crimes).

The Georgia RICO act makes it illegal to engage in a “pattern of racketeering activity.” That’s defined elsewhere as committing two or more crimes from a list of specified crimes. So, that list in the indictment reflects things that are just overt acts, and things that are identified as specific crimes constituting acts of racketeering and that are also overt acts:

Call me an insufferable pedant or, worse, a former federal prosecutor, but for clarity I would have separated the things that the government says are racketeering acts from the things just being identified as overt acts, particularly in a case of such historical interest and in an area with such potential for confusion. The overt acts are evidence of the conspiracy; the criminal acts are predicate crimes for the RICO enterprise. They’re different and it would be clearer if they were more clearly listed differently.

Leaning Into The Controversy, Or Indifferent To It?

So: that’s how, in charging a conspiracy to violate Georgia’s RICO statute, you wind up with a list consisting of both specific alleged criminal acts and mundane acts, including acts otherwise protected by the First Amendment.

In my view, the Georgia RICO indictment is gratuitous, self-indulgent, and careless of the appearance of legitimacy. Yes, under current law protected speech acts can be overt acts. But that doesn’t mean a prosecutor should gratuitously include such acts. There are so many arguable crimes that serve as both overt acts and racketeering acts, and so many communications that expressly incorporate fraud and deceit, that it would have been easy to draft an indictment to leave out tweets and speeches and the like. Putting them in seems like leaning into the pro-Trump talking points and accepting accusations of overt political bias.

The indictment also suffers from a lack of framing language — language that puts in context the difference between lawful and unlawful political acts. Jack Smith did a good job of this in the D.C. indictment against Trump, which similarly set out to tell a complex story:

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. He was also entitled to formally challenge the results of the election through lawful and appropriate means, such as by seeking recounts or audits of the popular vote in states or filing lawsuits challenging ballots and procedures. Indeed, in many cases, the Defendant did pursue these methods of contesting the election results. His efforts to change the outcome in any state through recounts, audits, or legal challenges were uniformly unsuccessful.

Shortly after election day, the Defendant also pursued unlawful means of discounting legitimate votes and subverting the election results. In so doing, the Defendant perpetrated three criminal conspiracies:

That sort of table-setting costs nothing and contributes tremendously to promoting public understanding of the distinction between protected political speech and unlawful fraud. Similarly, Smith went out of his way to identify overt acts that were clearly fraudulent — that had the wrongdoing evident and built-in.

The different styles reflect different prosecutorial cultures. Federal prosecutors are, on average, much more cautious and risk-averse than district attorneys. Federal judges are somewhat (not nearly enough) more willing to force federal prosecutors to follow rules and call them out on bullshit. By contrast, state judges — who are often elected and used to seeing colleagues who are “soft on crime” lose their seats — tend to let district attorneys get away with much more. This can promote a defiant attitudes, with local prosecutors believing that any barrier to doing whatever they want to do is a grave illegitimate injustice.

Before Ms. Willis took office, an appellate court rebuked the Fulton County District Attorney’s Office for making a “bizarre” argument defending a conviction, and they leaned into it as a point of pride, making “Bizarre for Justice” t-shirts.

Fani Willis is a darling of people who hate Trump right now. I think Trump and his team committed crimes, and that the indictment captures some of them. But — as has been common for the last five years — Trumpian cases tend to flip the script and make people who would be skeptical of law enforcement into credulous law enforcement fans, and vice-versa. That leads us to ignore cultural problems with prosecutors. Some of the drafting of this indictment strikes me as gratuitous, unsound, unnecessarily invoking First Amendment and political concerns, and kind of sloppy. But I don’t actually think it’s because Fani Willis is an anti-Trump zealot — at least not primarily. I think its because she’s a classic DA — kind of arrogant, kind of entitled, dismissive of arguments and concerns about how her office wields power, confident (usually justifiably) that judges won’t hold her to account, and tending to view constitutional and statutory rights as obstacles rather than as the accepted rules.

In a perfect world, fans of Fani Willis would think about how this approach works when applied to people who aren’t famous or rich or conservative. For instance, how many people can defend themselves if Fani Willis decides to add them to a 28-count indictment for RICO where jury selection alone has taken eight months? Can she - can any DA — be trusted to wield the RICO statute fairly, or will they inevitably resort to using it to strongarm court reporters for using the wrong font to make more money? In that same perfect world, Trump supporters (or anti-anti-Trump folks) would have an epiphany — holy shit, if they can do this to Trump and his crew, what are they doing to regular folks? Is my trust in police and prosecutors misplaced?

Isn’t it pretty to think so.

Too often, the news brings us stories of people who have died or gone missing. Some of these stories have missing words with their own gravity, like miniature linguistic black holes. When the news presents an adult gone missing from their family without an obvious explanation (like “hiking alone” or “nighttime swim”), I scan the article for words like “depression” and “troubled” or for other signs that the family’s fear is a very specific one about suicide. When an apparently physically healthy person dies without explanation, I look for the same words, or for the discreet circumlocutions that sometimes replace them.

We’ve gotten more careful with language. That’s good. The media has listened to expert advice about how to report on suicide, and has outgrown traditional terminology that carried ancient judgments. Those judgments — that suicide is a crime, that it’s sin, that it’s shameful, that it’s an act of violence against the self and against family, are pernicious. They deter people from seeking help, because they tell people suffering from depression and anxiety “you’re a bad person for even thinking about that, you’re a bad person for feeling the way you do.” That message, that lie depression tells us, is genocidal. More Americans died by suicide last year than any year on record, probably more than car crashes, around 16 nine-elevens. Good messaging on this subject saves; bad messaging kills.

Good messaging isn’t easy, especially in the context of reporting deaths. The media is also understandably loath to invade the privacy of the deceased or their loved ones, or jump to conclusions about a death in a way that could simply stigmatize suicide further. So when someone like Sinéad O'Connor dies without explanation and without “signs of foul play,” the media implies, but doesn’t ask. Stories about O’Connor mention her history struggling with depression and suicidal thoughts, her efforts to de-stigmatize those afflictions, and the excruciatingly tragic death of her young son by suicide and her recent vocal anguish over it. But when it comes to her death, they don’t ask the questions, they don’t say the words. The missing words hang there, heavy, like lead weights.

Could the media do that better? I’m not sure. I suppose the media could hold off on implying anything about the cause of death until and unless one is announced. But stories like this hit hard if you struggle with depression, if you’ve ever been plagued by thoughts of suicide yourself. Those feelings don’t wait until the full story is in. I remember when I learned Robin Williams died by suicide. I was in an elevator, riding up to the psychiatrist who would see me for perhaps a hundred and fifty seconds, a few months into recovery from a profound and near-fatal surge of inexorable depression. It felt like a blow to the head. I stopped the elevator between floors and gripped the railings hard and breathed deeply several times and over the snotty blattttt of the elevator alarm I thought Jesus. If he can’t hack it, how can I? I am certain O’Connor’s death landed the same way for millions.

But I could hack it, I can, I do. It’ll be ten years next year, and here I am, still going, doing pretty well most of the time, more confident in the tools I’ve collected to weather the bad times. Our moral imperative of depression and suicide is to get more people from there to here. That’s hard. It’s hard because it involves asking suffering people to make a kind of leap of faith — to ask for help even if they can’t and don’t believe it will work, even if it hasn’t worked before, even if they are unable to imagine (because depression lies) that it could work. It’s describing light to one born blind.

Maybe that’s not the media’s job, at least not when it wears its news-reporting hat. I suppose there are ways the media could finesse it. Reporters could say “while no cause of death has been reported for Sinéad O'Connor, her history of frankness on the subject of depression and her recent anguish about her son’s death by suicide has led to fans expressing their fears and anxieties on the subject. Here are resources for people struggling with depression and suicidal thoughts, and here’s an expert to talk about it.”

But maybe helping our fellow humans is primarily the job of people who have been there, not the news-reporters. Maybe it falls to survivors, and their loved ones, to say this: I feel it too. When something happens like that in the news, when we lose someone to suicide or what looks like probable suicide, when it appears that someone lost the fight, I still feel it. I remember wondering if it would happen to me. I remember such a death making me wonder “if she couldn’t fight it, how am I worth fighting it?” But there is hope. You can’t see or feel it, but it’s there. It exists on the other side of you asking for help. Please let me tell you about it. Please believe that you can have bad depression and anxiety and manage it — that you can get to a place where you can have a job, have a family, have success and responsibility, feel joy, and still be a person with depression and anxiety. It can get better, but you have to ask for help.

Maybe it’s our collective responsibility to fill in the missing words, and to help others carry the weight.

I’ve talked a lot about depression, anxiety, and suicide before. But recently I realized I haven’t talked about it here on Substack. That’s changing now. This will still be a newsletter mostly about the law. But now and then it’s going to be about harder things. I hope it will be a space where you feel comfortable discussing those things. And I hope it will help convince even a few people to be open about what they feel. In preparation, let me re-introduce myself for these proceedings. I’m Ken. I have a success career as a law firm partner, a successful avocation as a writer and podcaster, a family, a mortgage, and occasionally debilitating major depression and anxiety. I have all those things at once because I learned to manage that last part [I’m not claiming to have learned to manage the family or law firm part]. Ask me how.

Every time I talk about this subject caring people ask if I am okay. I am right now, thanks for asking. Someday, sooner or later, I won’t be; that’s the way the disease works. When that happens, I’ll ask for help. Please join me in that promise.

The other way to be a public legal commenter is to be an advocate pretending to be a fair reporter — to take what you think the law should be based on your sympathies or politics and present it deceitfully as what the law inarguably is. I’ve often criticized Alan Dershowitz for doing this — for instance, for telling the public “you can’t convict someone of lying to the federal government if the federal government knew they were lying,” even though every modern court to consider that argument has rejected it.

Andrew C. McCarthy and the Editors of the National Review are choosing the Alan Dershowitz path of legal commentary. Well, at least it’s an ethos.

Last Week: The National Review Misrepresented Federal Fraud Law

Last week I explained how the National Review was flat-out lying about the state of the law on the latest charges against Donald Trump. Among other things, the Editors claimed that the Supreme Court has recently ruled that “fraud in federal criminal law is a scheme to swindle victims out of money or tangible property” and that therefore the Special Counsel is wrong to charge Donald Trump with violation of 18 U.S.C. section 371. I pointed out that this was a lie — the cases National Review is talking about recent cases interpreting the mail and wire fraud statutes, both of which have specific language in the statute requiring a scheme to take money and property. By contrast, for the last hundred years courts from the Supreme Court down have repeatedly ruled that Section 371 makes it a crime to defraud the United States in a way to interfere with its operations, even without money and property as a goal.

This Week: The National Review Misrepresents Federal Fraud Law, But In New And Different Ways

The National Review, through Andrew C. McCarthy, has doubled down and lied some more. Would you like to hear how? Of course you would.

Naturally Mr. McCarthy did not deign to respond to me. But he did respond to National Review writer Noah Rothman, who honorably (and much more politely than I) told the Editors they were wrong. His response is more dishonesty — more advocacy thinly disguised as neutral analysis — not less.

First, Mr. McCarthy again relies on this year’s decision in Ciminelli v. United States, quoting it for the proposition that “the federal fraud statutes criminalize only schemes to deprive people of traditional property interests.” But Ciminelli is about federal mail and wire fraud statutes, both of which explicitly refer to schemes to defraud people of money or property. Ciminelli isn’t talking about Section 371 or any other fraud statute. The case doesn’t even mention Section 371. Mr. McCarthy wants you to believe — even though the proposition is ridiculous on its face — that Justice Clarence Thomas was making a broad, sweeping ruling about every federal statute with “fraud” in it, even though only one statute was in front of the Court. He wasn’t. Mr. McCarthy knows he wasn’t.

Second, Mr. McCarthy cites McNally v. United States, the 1987 case in which the Supreme Court said that the wire fraud statute covers schemes to defraud people of money or property, not an intangible “right to honest services,” a long-time theory popular in corruption prosecutions. (Congress promptly passed a law saying you could prosecute people for depriving the public of the “right of honest services.”) Mr. McCarthy points out that Justice Stevens, in dissent, cited cases about Section 371 — the same ones Mr. Rothman and I cited — for the proposition that fraud can be broader than depriving people of money or property. But they were the dissent! They lost! Mr. McCarthy tells his audience, shows that the Supreme Court has rejected a broad theory of fraud under Section 371.

The problem with this argument is that it deceitfully omits a key part of the majority opinion in McNally. In a footnote — which, I regret, I must remind you to read — Justice White explains that Section 371 permits broader theories of fraud because it services different interests, and endorses the broader reading of Section 371. The whole footnote explicitly contradicts McCarthy’s argument but here is the key part:

Hammerschmidt concerned the scope of the predecessor of 18 U.S.C. § 371, which makes criminal any conspiracy "to defraud the United States, or any agency thereof in any manner or for any purpose." Hammerschmidt indicates, in regard to that statute, that while

"[t]o conspire to defraud the United States means primarily to cheat the Government out of property or money, . . . it also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest."

265 U.S. at 265 U. S. 188. Other cases have held that § 371 reaches conspiracies other than those directed at property interests. See, e.g., Haas v. Henkel, 216 U. S. 462, 216 U. S. 480 (1910) (predecessor of § 371 reaches conspiracy to defraud the Government by bribing a Government official to make an advance disclosure of a cotton crop report); Glasser v. United States, 315 U. S. 60 (1942) (predecessor of § 371 reaches conspiracy to defraud the United States by bribing a United States attorney). However, we believe that this broad construction of § 371 is based on a consideration not applicable to the mail fraud statute.

. . .

Section 371 is a statute aimed at protecting the Federal Government alone; however, the mail fraud statute, as we have indicated, had its origin in the desire to protect individual property rights, and any benefit which the Government derives from the statute must be limited to the Government's interests as property holder.

Put another way, in McNally the Supreme Court expressly said that Section 371 has a broader theory of fraud because it protects different interests than the mail fraud statute. Mr. McCarthy takes McNally and says that it shows that fraud is defined the same under the mail fraud statute and Section 371. That’s lying.

Third, McCarthy goes on to misrepresent yet another Supreme Court case, Skilling v. United States, in which the Court struck down the conviction of infamous Enron exec Jeffrey Skilling. Once again, Mr. McCarthy suggests that Skilling applies to Section 371; once again, the case doesn’t mention that statute.

Fourth, let me ask you a question. Do you think that it’s relevant that courts have specifically rejected the very argument you’re making? I do. I do think that thing. So you should know — as Mr. McCarthy knows, or should know if he honestly researched his point — that the only federal appellate court to consider his argument rejected it entirely. The case is United States v. Morosco, a 2016 First Circuit case. Mr. Morosco was convicted of conspiring to defraud the United States under Section 371. He made Mr. McCarthy’s argument. Pay attention to the First Circuit’s less-than-impressed tone completely rejecting it, for the same reasons Noah Rothman and I have outlined:

Start with Fitzpatrick's and Morosco's most loudly trumpeted point. As they tell it, section 371's “defraud” clause only bans conspiracies to deprive the government of property and money by dishonest schemes, a reading (they add) that jibes with the common-law understanding of “defraud.” And such a reading would help them (they continue) because they never scammed the government out of property or money. Unhappily for them, years' worth of Supreme Court precedent holds that section 371 “is not confined to fraud as that term has been defined in the common law,” see Dennis v. United States, 384 U.S. 855, 861, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966) ; that defrauding the government under section 371 means obstructing the operation of any government agency by any “deceit, craft or trickery, or at least by means that are dishonest,” see Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S.Ct. 511, 68 L.Ed. 968 (1924) ; and that the conspiracies need not aim to deprive the government of property or money, see id., because the act is written “broad enough ... to include any conspiracy for the purpose of impairing, obstructing, or defeating the lawful function of any” government “department,” see Haas v. Henkel, 216 U.S. 462, 479, 30 S.Ct. 249, 54 L.Ed. 569 (1910). Ever faithful to high-Court holding, our caselaw rejects the idea that section 371 only bars conspiracies to defraud the government out of property or money. See United States v. Barker Steel Co., 985 F.2d 1123, 1136 (1st Cir.1993) (relying on Supreme–Court cases interpreting section 371 and its basically “similar predecessors”); Curley v. United States, 130 F. 1, 6–10 (1st Cir.1904) (explaining that “defraud” in section 371's forerunner has a broader meaning than the common-law definition—and justifiably so because the statute's aim is to protect the government, and deceit can impair the workings of government even if the conspiracy does not take the government's property or money). Obviously then, this facet of Fitzpatrick's and Morosco's vagueness thesis goes nowhere.

Dude, I think that court just said you’re full of shit.

But wait, Mr. McCarthy might say. What about the new Supreme Court cases I talked about? They undermine those precedents! (Of course, for the reasons set forth above, they don’t, but let the man make his arguments.) Sorry — no joy, says the First Circuit, again with a dismissive tone.

In what is basically a Hail Mary pass, Morosco argues that two fairly recent cases signal a new willingness on the high Court's part to entertain vagueness challenges—a willingness (the argument goes) that we must emulate. The two cases are (1) Skilling v. United States, 561 U.S. 358, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010), limiting “honest services” fraud so that it only applies to defendants involved in either bribery or kickback schemes, and (2) Johnson v. United States, ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), declaring the Armed Career Criminal Act's residual clause—a provision dealing with crimes that “involve[ ] conduct that presents a serious potential risk of physical injury”—too vague to be enforced. His pass falls incomplete, however, and for a simple reason. Neither Skilling nor Johnson overruled the Haas/Hammerschmidt line of section–371 cases. And because overruling Supreme Court precedent is the Court's job, not ours, we must follow Haas/Hammerschmidt, etc. until the Court specifically tells us not to—something that is true even if these long-on-the-books cases are in tension with Skilling and Johnson (and we do not suggest that they are).

In other words, the First Circuit said it’s up to the Supreme Court if it wants to adopt McCarthy’s arguments; they are bound by prior Supreme Court precedent.

Defendant Morosco had an excuse to reach so far; he was in federal prison. Mr. McCarthy is in Basking Ridge, New Jersey.

Be An Advocate, Or Be A Legal Commentator

So. Could the Supreme Court eventually overturn a century of its own law and find that Section 371 is actually restricted to schemes to defraud the government of money or property? Sure. It could. But saying “this is obviously the law and the prosecutor is breaking it” is not the same as saying “I think this should be the law and I think the Supreme Court might eventually agree.”

Here’s how Mr. McCarthy could make his point honestly: “Jack Smith has charged Donald Trump with conspiring to defraud the United States in violation of 18 U.S.C. section 371. I think that charge is unsound because Smith doesn’t claim, nor could he, that Trump was trying to defraud the government out of money or property. Though the Supreme Court and other courts historically said that’s not a requirement under Section 371, I think that rule is undermined by more recent Supreme Court cases interpreting the mail and wire fraud statutes. No court has agreed with me — indeed, the First Circuit rejected my argument! — but I think my argument is the better one and the Supreme Court should eventually adopt it. Let me explain why.”

That would be honesty to National Review’s audience, instead of being an advocate with pretenses to honest legal commentary.

But that’s not what Andrew C. McCarthy said. Why not? He’s not pro-Trump. But he’s anti-anti-Trump. He’s anti-Biden, anti-the-Department-of-Justice-pursuing-Republicans, anti-”deep state”) (well sort of), anti any application of the rule of law that might benefit Democrats. Plus, he’s very pro- the National Review being kept alive and relevant. The National Review is under siege from a frothingly crazy pro-Trump right, and if it’s not entirely willing to join the crowd, it’s certainly willing to indulge in deceitful critiques of anyone criticizing Trump.

Once again — it’s an ethos, I guess.

I refer to an appallingly bad Washington Post column about the hypothetical sentence Donald Trump faces based on his (to date) three pending criminal cases. When I awoke on Friday, about two dozen gleeful people had sent it to me in some sort of cruel exercise of modern bearbaiting.

The Washington Post column is inexcusable. Here’s why.

How Federal Sentencing Actually Works

In our recent Very Special Episode of Serious Trouble about how to be an informed and critical consumer of legal news, Josh Barro and I spent a long time discussing one of the most important things the media gets badly wrong: it reports the statutory maximum sentences defendants face as if those numbers had anything to do with the actual sentences the defendants face. They almost never do. Adding up all the statutory maximum sentences for all the counts charged in an indictment is an exercise in clickbait disinformation. I’ve been ranting about this for more than a decade but we are still here.

Here’s how federal sentencing works. The United States Probation Office, with the input of the parties, proposes a recommended sentence calculated using the United States Sentencing Guidelines. The Guidelines are extremely complex; calculating a sentence under them can be comparable to filling out a business’ tax return. Using the Guidelines yields two key numbers: a Criminal History Category (a number 1 through 6 representing the seriousness of the defendant’s criminal record) and an Offense Level (a number 1 through 43 representing the seriousness of the crimes of conviction). The parties can then object to the Probation Office’s calculations and make arguments to the court about whether and how the Probation Office got it wrong. Once the judge determines the Criminal History Category and Offense Level, he or she applies them to the Sentencing Table to generate a sentencing range in months:

In the old days, the resulting sentencing range was mandatory and bound the court; in 2005 the Supreme Court ruled that the Guidelines could only be treated as a recommendation, not a mandate. So now federal judges treat the Guidelines sentence as a recommendation — a starting point — and sentencing defendants based on mandatory factors set forth in federal statutes.

What’s the result? A sentence — especially in white collar cases — is almost always below the statutory maximum. In cases where a defendant has been convicted of multiple counts and the statutory maximum is high, the sentence is almost always far below the statutory maximum. White collar criminals only get sentenced close to the statutory maximum when (1) they are only convicted of one or two counts with very low statutory maximum (say, one count of a crime with a five-year statutory maximum, as part of a plea bargain), or (2) cases involving truly extraordinary amounts of money. That’s why you repeatedly see white collar criminals being sentences to just a small fraction of the statutory maximum sentence they face.

How The Washington Post Blew It

The Washington Post’s deeply irritating column is very nominally about telling you that actual sentences and maximum sentences are different, but it does it in a way almost certain to mislead and misinform, and provides no useful information of substance.

First, the core of the Post’s article is a splashy infographic meant to act as Resistance porn. It adds up, on a Candyland-style path, the maximum sentence on each count in the New York state indictment against Trump, the Florida federal indictment for wrongfully retaining documents, and the new Washington D.C. indictment for his January 6 fraud. The infographic is plainly the beating clickbait heart of the piece. It’s also completely useless. The combined maximum sentences from the three cases is a meaningless, masturbatory number. It has nothing to do with what federal sentences he faces, as I note above, and New York criminal law experts (and I am not one) say that the maximum sentences in that case have nothing to do with the plausible sentence he faces there.

Second, when the Post gets around to contradicting its own splashy infographic, its effort is desultory. The column says:

First of all, that figure depends upon his being convicted of each and every one of the 78 counts he has been charged with — meaning that prosecutors would have to bat a thousand in each venue. Outside observers generally agree the Mar-a-Lago case is the strongest and the case in Manhattan much weaker. Should District Attorney Alvin Bragg be unable to convict on his 34 counts, there’s a century-plus sliced off the total right there.

Well, no. That’s not the first reason the number is wrong at all. The number of counts has very little impact on federal sentences (or, in this context, on New York sentences). Sentences are typically driven by what the Guidelines call relevant conduct — the universe of facts underlying the conviction. Most of the time in white collar cases that universe is governed by the amount of money involved in the crime. A defendant who is convicted of two counts of wire fraud and a defendant convicted of ten counts of wire fraud will get very similar sentences if both cases involve a million dollars in loss, for example. Most of the time the number of counts is puffery by the government. That’s certainly the case in New York — where the prosecution’s 34 counts of doing the same thing is performative and non-substantive — and in Florida, where Jack Smith’s charging 32 counts of wrongfully retaining documents is mostly performative and about making sure he can present all of those documents at trial, not about driving a sentence. The Post’s “first” point therefore misses the point.

But the Post isn’t done yet:

Second, the total assumes that Trump would receive the maximum sentence for each guilty verdict. That, too, is unlikely. People convicted of crimes often receive lighter sentences. What’s more, judges in some cases can decide that sentences should be served concurrently — so conviction of 10 years on each of 32 counts might mean that one 10-year stint could fulfill each count’s requirement.

This is hyper-technically true but incredibly misleading and uninformative. First, it’s “unlikely” that Trump will get the maximum statutory sentence in the same sense that it’s “unlikely” that I will win a billion dollars in the lottery this week. It’s absolutely not going to happen and nobody who knows the system thinks there is any chance it will. People convicted of crimes don’t “often” receive lighter sentences than the maximum, they almost inevitably receive lighter sentences, especially in white collar cases involving multiple counts. Moreover, this utterly useless paragraph provides the reader with no information whatsoever about why defendants receive lower sentences, or the mechanism by which they are sentenced. It doesn’t even mention the Guidelines or any other term or concept a curious reader could use to puzzle out what’s going on. The implication most readers would take from the article is that judges are just lenient.

The column’s reference to concurrent and consecutive sentences is also extremely misleading. Federal judges choose a sentence under the process I described above and then make the sentence consecutive only when it’s necessary to accommodate that sentence. So, for instance, if a judge imposed a seven-year sentence in a case where the defendant was convicted of five counts each with a five-year maximum sentence, the judge would impose a five-year sentence on one count and a two-year sentence on another to run consecutively, thus accommodating the sentence. As the Guidelines put it:

If the sentence imposed on the count carrying the highest statutory maximum is adequate to achieve the total punishment, then the sentences on all counts shall run concurrently, except to the extent otherwise required by law.

The Post also fails to give us any useful information about how judges decide whether to make sentences consecutive or concurrent with sentences in other cases — as Trump could face here — even though there are guidelines on that too.

What’s particularly appalling here is that the Post’s column purports to be about dispelling the notion that Trump faces hundreds of years in jail, and accusing him of touting that idea to fundraise. But it offers no useful information about how or why Trump’s sentence will be lower. It makes that point, as Bluesky user George Harris pointed out to me, only after “privileging the lie” — describing the false story first, for multiple paragraphs, with an eye-catching infographic, only to half-ass the rebuttal later in the story.

The Post also ignores that you can make informed, fact-based estimates of what Trump’s sentence will be. My friend and colleague Mitch Epner did a careful Guidelines analysis of the D.C. case. The Guideline range he calculates would only be a recommendation to the judge, and in white collar cases judges often go below the Guidelines, but they very rarely go higher, to Mitch’s calculations are a sensible estimate of the highest sentence we’re likely to see. There are a number of good, fact-based, expertise-based Guidelines estimates of the D.C. and Florida cases out there, and a number of good expertise-based estimates for the New York case. All of them help inform and educate a reader. The Post doesn’t discuss or link to any of them.

As Mitch pointed out to me, this is all especially galling because the author of this column, Philip Bump, has a newsletter called "How To Read This Chart" billed as “a weekly dive into the data behind the news.” Mr. Bump knows data, and charts. He knows the hundreds-of-years figure for Trump’s sentence is nonsense but builds the entire column around an infographic pushing it, even though he also knows the likely impact on readers. He knows what an average reader will take away from this column that’s written around an eye-catching infographic, a column that offers only bland and uninformative generalities and no data whatsoever about how sentences actually work.

Resist Disinformation

Some people, like Trump and his supporters, will lie to you about what sentence he faces because that helps Trump fundraise and helps his narrative about being a victim of an abusive vendetta. But the Washington Post isn’t in Trump’s pocket. Why would it indulge in this hackery? The answer is simple, and lies at the heart of the media’s culpability for our broken, carceral criminal justice system: it’s attention-getting. This is the nerd-clickbait version of the ancient “if it bleeds, it leads.” This is part of the complex process of media malpractice that leads to widespread perceptions that crime is up even when it's down, making society worse for everyone.

The Post does a lot of good, accurate work on criminal justice, including on the cases against Trump. This ain’t it. Editors, please gatekeep.

The Indictment

Special Counsel Jack Smith indicted Donald Trump yesterday. The indictment is here and all over the internet. Josh Barro and I, and our exceptional producer Sara Fay, put out an emergent episode of Serious Trouble last night discussing it. I’m proud of the episode and I submit it’s worth a listen.

Serious Trouble

Trump Is Indicted for Trying to Steal the Election

Listen now (52 min) | Dear listeners, Donald Trump got indicted again. And this time, we hadn’t started recording the week’s episode. So we set about doing so, on an urgent but non-emergency basis. This new federal indictment, issued in Washington DC, is for trying to steal the 2020 election. The set of facts underlying the charges, while outrageous, are mostly already known t…

Listen now

3 years ago · 55 likes · 18 comments · Josh Barro and Ken White

The world is awash with analysis of the indictment. In brief, the indictment charges Trump as follows:

• Count One, conspiracy to defraud the United States in violation of 18 U.S.C. section 371. Section 371 has two parts. It’s most commonly used to charge a conspiracy to violate some specified federal crime: for instance, conspiracy to violate money laundering statutes. But it has another clause for conspiracies “to defraud the United States, or any agency thereof in any manner or for any purpose.”

• Count Two, conspiring to obstruct an official proceeding in violation of 18 U.S.C. section 1512(k).

• Count Three, obstructing an official proceeding under 18 U.S.C. section 1512(c) — which applies to someone who “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.” That’s the substantive offense underlying Count Two. In other words, Count Three is the crime itself, Count Two is the conspiracy to commit the crime, which are separate offenses and very commonly charged separately in federal law.

• Count Four is a conspiracy to interfere with the exercise of constitutional or statutory rights under 18 USC section 241.

The Special Counsel’s theory of the case is broad: he asserts that Donald Trump and co-conspirators (unnamed, per Department of Justice policy, but including Rudy Giuliani, John Eastman, Jeffrey Clark, and Sidney Powell) engaged in wide-ranging conspiracies to present knowingly false claims and fabricated elector slates to the U.S. Senate when it tabulated and certified votes on January 6, 2021. The conspiracy extended to using false statements to pressure state and federal officials to interfere with the vote count. Jack Smith’s theory is that this course of conduct amounted to defrauding the United States, obstructing and conspiring to obstruct the official Senate proceeding, and using fraud to interfere with the votes of others by attempting to have them fraudulently discarded.

This Is Complicated, Which Is Not the Same As Unprecedented

Nobody’s ever been charged with this set of facts because nobody’s ever attempted to overthrow the government by fraud like this before. In that sense, this is “unprecedented.” But in other senses, that term is misleading. Each of these federal criminal laws — which are broad and flexible by design — has been used to charge a wide variety of fraud and misconduct.

Federal courts have upheld convictions under Section 371 for a very broad range of conduct designed to interfere with or obstruct government functions. More than a hundred years ago the Supreme Court said:

The statute is broad enough in its terms to include any conspiracy for the purpose of impairing, obstructing, or defeating the lawful function of any department of government. Assuming, as we have, for it has not been challenged, that this statistical side of the Department of Agriculture is the exercise of a function within the purview of the Constitution, it must follow that any conspiracy which is calculated to obstruct or impair its efficiency and destroy the value of its operations and reports as fair, impartial, and reasonably accurate would be to defraud the United States by depriving it of its lawful right and duty of promulgating or diffusing the information so officially acquired in the way and at the time required by law or departmental regulation.

A conspiracy to generate lies to submit to the Senate to derail vote tabulation and certification is plausibly within that definition.

Similarly, obstructing an official proceeding under Section 1512(c) has been construed broadly to encompass a wide variety of acts:

Furthermore, our peer circuits have applied the statute to reach a wide range of obstructive acts, not just those limited to tampering with documents or objects. Those courts have found “otherwise” obstructive conduct under subsection (c)(2) to include: (1) lying in written responses to civil interrogatory questions, Burge, 711 F.3d at 808–09; (2) soliciting information about a grand jury investigation to evade surveillance, Volpendesto, 746 F.3d at 286; (3) seeking a false alibi witness, Petruk, 781 F.3d at 444, 447; (4) tipping off the targets of criminal investigations, United States v. Ahrensfield, 698 F.3d 1310, 1324–25 (10th Cir. 2012); (5) asking third parties *338 to create fraudulent physical evidence, United States v. Desposito, 704 F.3d 221, 230–33 (2d Cir. 2013); (6) giving misleading testimony in a preliminary injunction hearing, United States v. Jefferson, 751 F.3d 314, 321 (5th Cir. 2014); (7) attempting to orchestrate a grand jury witness's testimony, United States v. Mintmire, 507 F.3d 1273, 1290 (11th Cir. 2007); (8) making false statements to a grand jury, United States v. Carson, 560 F.3d 566, 584 (6th Cir. 2009); and (9) burning an apartment to conceal the bodies of two murder victims, United States v. Cervantes, No. 16-10508, 2021 WL 2666684, at *6 (9th Cir. June 29, 2021).

United States v. Fischer, 64 F.4th 329, 337–38 (D.C. Cir. 2023)

That, too, is plausibly broad enough to encompass Trump and his co-conspirators’ conduct.

Finally, Section 241 has long been used to charge officials with fraud in connection with elections on the theory that the fraud has the effect of disenfranchising voters and interfering with their rights. That has specifically included creating false votes and slates of votes. Once again, Trump’s conduct plausibly meets this standard.

That doesn’t mean that it will be easy for the Special Counsel to prove beyond a reasonable doubt that Donald Trump had the requisite mental state to violate the law. It means that his actions plausibly violate the law.

This also doesn’t mean that the state of the law, as described above, is inarguable. The federal courts’ interpretation of the law changes over time. Some trial judges have found that the Department of Justice’s interpretation of Section 1512 is too broad, though a Court of Appeals disagreed. Moreover, Trump and his co-conspirators were engaging in speech closely linked with politics, and political 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. This is why the Special Counsel was very careful in the indictment to specify false statements that were specific and falsifiable (for instance, that 10,000 dead people voted) rather than statements that were rhetoric or political opinion (like “mail-in ballots are unreliable”).

Here’s the point: there are legal and factual defenses to this indictment, but anyone telling you that it obviously, inarguably violates the law is lying to you.

Passionate Partisans Are Lying To You And Will Keep Lying To You

There’s a very broad range of plausible arguments about how to read American law. Saying “my interpretation is that this violates the First Amendment” or “I think the better reading is that obstruction of an official proceeding requires violence or perjury” are not lies, even if they are bad arguments.

But some people are absolutely lying to you about the law and how it applies to the indictment of Donald Trump — or, at the most charitable, Cliff Clavening it by speaking confidently from a place of deliberate ignorance.

Let’s take the editors of National Review. I’m singling them out from many people lying about the law, because they are prominent, we can expect better, and they deserve it. Fair disclosure: I have written for them.

The editors of the National Review have published an editorial arguing that impeachment was the proper vehicle to address Trump’s attempt to steal the election and that it’s improper and an abuse of the Department of Justice to use the criminal justice system to try to redress it. That’s not a lie; it’s an opinion. I disagree with it, but it’s not “right” or “wrong” factually, it’s a dispute over policy and what the rule of law should mean.

Unfortunately the editors aren’t satisfied with making a policy argument; they stoop to misleading and lying about the law. First, the misleading. They say:

Finally, Smith is charging Trump with a civil-rights violation, on the theory that he sought to counteract the votes of Americans in contested states and based on a post–Civil War statute designed to punish violent intimidation and forcible attacks against blacks attempting to exercise their right to vote. What Trump did, though reprehensible, bears no relation to what the statute covers.

This is a plausible originalist argument about Section 241, which is a Civil War statute and was originally intended to stop the sort of anti-civil-rights violence that the National Review eventually agreed was unlawful. However, I submit that the statement is materially and intentionally misleading because it does not reveal to the National Review’s readers that the United States Department of Justice has prosecuted election fraud as a violation of Section 241 for generations and has been repeatedly upheld by the courts in doing so. The National Review describes the charge as “remarkable.” Without adding that the charge is based on a widely accepted interpretation of Section 241 upheld by the courts, this argument is deceitful.

The National Review also flat-out lies. It says:

Here, it is not even clear that Smith has alleged anything that the law forbids. The indictment relates in detail Trump’s deceptions, but that doesn’t mean they constitute criminal fraud. As the Supreme Court reaffirmed just a few weeks ago, fraud in federal criminal law is a scheme to swindle victims out of money or tangible property. Mendacious rhetoric in seeking to retain political office is damnable — and, again, impeachable — but it’s not criminal fraud, although that is what Smith has charged.

But National Review is lying to you about the Supreme Court and about what’s charged here. The Special Counsel charged Trump with defrauding the United States under Section 371. The Supreme Court and lower courts have repeatedly and specifically ruled that Section 371 doesn’t require a scheme to take money or property. National Review is referring to the latest in a line of cases interpreting a completely different statute, the wire fraud statute, that includes a “money or property” requirement in its text:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice . . . .

Justice Thomas, in the 2023 case to which National Review alludes, expressly relies on that language to find that the wire fraud statute requires a scheme to take money or (as traditionally defined) property. He does not even mention Section 371, which does not include the “money or property” language and which has a long history of Supreme Court and lower court cases holding that the object of the fraud need not be money or property, but can be interfering with government function.

That’s not just misleading; it’s a flat-out lie about the law.

Lies Are Not Opinions

As the criminal cases about Donald Trump progress, you’re going to see a lot of forceful, vivid opinions about whether the prosecutions are fair, just, good policy, or good governance. Good. That’s how things are supposed to work. Opinions about policy may be dumb, but they’re not lies.

But you’re also going to see a lot of false statements about what’s been charged, how federal criminal procedure works, and what the law is. Sometimes these will be misstatements out of carelessness (I’m occasionally guilty on that) or ignorance. But often they will be flat-out partisan lies, like National Review’s editorial. Just as Donald Trump was willing to call upon a host of overt lies in an attempt to steal an election, his defenders are willing to muster lies to defend him from any legal consequence. Donald Trump’s critics, too, will lie to deny that any argument made in his favor can possibly be colorable.

Don’t tolerate it. Call it out. Rebuke, and shun, the liars.

How can you tell the truth from a lie or mistake, when federal criminal law is complex? It’s not easy. Here are a few guidelines:

• Rely, when possible, on people offering primary documents and links to citations and support.

• Be skeptical of absolute certainty not backed up with proof. Be skeptical of pronouncements that there’s only one way a court will ever possibly interpret something.

• Be more trusting of nuance, concessions of ambiguity and possible different interpretations, and exploration of opposing legal arguments. (Check out this post by Walter Olson as an example.)

This doesn’t mean you shouldn’t feel strongly about this case. I do. I’m furious. This indictment describes a course of conduct that should live in infamy for centuries, with Trump and his co-conspirators assuming their place in a pantheon of criminals, traitors, and anti-American miscreants for as long as the country endures. But Trump’s wrongdoing is fundamentally about not caring about truth, and only caring about power. Be better than Donald Trump. Care about the truth.

Josh, Sara and I will continue to cover developments in the Trump cases over at Serious Trouble. I invited you to subscribe to our podcast on your favorite podcast app, or follow the links at our Substack to do so.

Edited to add: Not all National Review writers are the same. To his credit, Noah Rothman Noah Rothman has written a dissent from the editorial making the same point about how it's wrong about the law.

On the other hand, some National Review writers are the same. When Andrew C. McCarthy, a former federal prosecutor who knows and understands the law, repeats the same legal deceit, he is absolutely and unequivocally lying to you.

So he fakes it. Trump is charged with defrauding the United States, even though it was just a few weeks ago — in throwing out convictions of two cronies of former New York governor Andrew Cuomo — that the Supreme Court reaffirmed that, in federal law, “fraud” means a swindle to bilk victims out of money or tangible property. It is not a vehicle by which prosecutors may impose their vision of good government. 

Trump is charged with corruptly obstructing Congress, even though “corruption” for these purposes must comprise clearly unlawful acts such as evidence manipulation or witness intimidation, not speech that is constitutionally protected even if deceptive. He is, finally and absurdly, charged with a civil rights violation — a scheme to have votes discounted — based on a Civil War-era statute designed to address the Ku Klux Klan’s forcible attacks on and intimidation of Black voters.

Glenn is agitated because the United States decided to drop a charge of conspiracy to commit campaign finance violations it had previously brought against infamous manchild Sam Bankman-Fried, the answer to the question “how bad could it be, being raised by two Stanford professors?” Glenn views this as a conspiracy to protect SBF, Democrats, and presumably Hunter Biden:

Glenn’s point is dumb. Since Glenn is absolutely not dumb, Glenn’s speaking from lazy ignorance, bad faith, or blinding hatred of the Democratic establishment and U.S. Department of Justice. Those things are not optimal for accuracy. In fact, the United States dropped campaign finance charges against SBF to comply with its treaty obligations.

The Extradition Treaty and the Rule of Specialty

The United States has an extradition treaty with the Bahamas, as it does with many countries. Here it is:

94 922 Bahamas Extradition Treaty

4.27MB ∙ PDF file

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The treaty sets forth the procedures for the United States and the Bahamas to request extradition of accused criminals from each other, and governs which crimes qualify for extradition. Like most extradition treaties, this one incorporates the Rule of Specialty. That familiar rule provides that, with a few exceptions, the requesting country (here, the U.S.) can only prosecute a defendant for crimes for which the extraditing country (here, the Bahamas) agreed to extradite them. This is intended to prevent requesting countries from saying “please send us this dude, he murdered someone,” and then prosecuting them for sedition or blasphemy or something else unacceptable to the extraditing country. There are a few exceptions, the most important of which is that the requesting country can ask the sending country for its consent to prosecute the defendant for additional crimes beyond those in the extradition order. Here’s how the United States Attorney’s Manual describes those exceptions and how federal prosecutors should deal with them:

Every extradition treaty limits extradition to certain offenses. As a corollary, all extradition treaties restrict prosecution or punishment of the fugitive to the offense for which extradition was granted unless (1) an offense was committed after the fugitive's extradition or (2) the fugitive remains in the jurisdiction that requested extradition after expiration of a reasonable time (generally specified in the extradition treaty itself) following acquittal or completion of his or her punishment. This limitation is referred to as the Rule of Specialty. Federal prosecutors who wish to proceed against an extradited person on charges other than those for which extradition was granted must contact the Office of International Affairs (OIA) for guidance regarding the availability of a waiver of the Rule by the sending State.

Here’s how the extradition treaty between the U.S. and the Bahamas articulates the rule:

(1) A person extradited under this Treaty may only be detained, tried, or punished in the Requesting State for the offense for which extradition was granted, or --

(a) any offense committed after the extradition;

(b) any offense in respect of which the executive authority of the Requested State, in accordance with its laws, has consented to the person's detention, trial, or punishment; and for the purposes of this subparagraph the Requested State shall require compliance with the extradition procedures specified in Article 8 and the submission of the documents specified in that Article . . .

The Bahamas’ Limited Extradition of SBF

When the United States initially charged Sam Bankman-Fried, it brought a variety of charges including conspiracy to defraud the United States and violate campaign finance laws. Sam Bankman-Fried decided to waive extradition proceedings and consent to extradition. The Bahamian Minister of Foreign Affairs executed a warrant of surrender governing the extradition. Here it is:

Sbf Warrant Of Surrender

1.26MB ∙ PDF file

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Notably, however, the Warrant of Surrender didn’t extradite SBF on all of the charges in the indictment. It omitted conspiracy to commit campaign finance fraud:

Why? Not sure. To indulge in speculation, the Bahamas might have seen the campaign finance charges as “political” rather than substantive, something that countries are historically reluctant to extradite over.

SBF’s Unsuccessful Motion To Dismiss and The Bahamas’ “Clarification”

The United States later filed superseding indictments adding a bunch of additional charges. SBF filed a motion to dismiss the charges that were not in the Warrant of Surrender — that is, the charges that the Bahamas had not expressly agreed to extradite SBF on. United States District Court Judge Lewis A. Kaplan ruled that SBF did not have standing to argue that the United States was violating the Rule of Specialty. Following the majority rule, he said that’s up to the Bahamas to enforce:

The Extradition Treaty here at issue does not provide that it may be enforced by an individual. Nor is there any language indicating that The Bahamas and the United States intended it to be so enforceable. Accordingly, under the Second Circuit's binding precedent, the rule of specialty may be invoked here only by The Bahamas. The defendant lacks standing to do so.

Judge Kaplan also noted that the United States has conceded that it is bound by the Rule of Specialty, but argued that it thought that the Bahamas mistakenly omitted the campaign finance charges from the Warrant of Surrender and they were asking the Bahamas to clarify and would abide by its decision:

The Court notes that the United States has notified The Bahamas of the additional charges in the S5 Indictment and is seeking a specialty waiver for the post-extradition charges. It concedes that The Bahamas' “response will be dispositive,” and that the government will not proceed on the new counts if The Bahamas denies its request. As to the campaign finance charge - Count Eight of the original indictment and Count Twelve of the S5 Indictment - the government maintains that the rule of specialty does not apply because the “extradition record as a whole suggests that the defendant was extradited on all counts in the original indictment.” Nevertheless, “[i]n an abundance of caution,” the United States “has conveyed to The Bahamas its understanding that the omission of the campaign finance charge [from the defendant's warrant of surrender] was inadvertent, and informed The Bahamas that, absent timely information to the contrary from The Bahamas,” it intends to proceed on that charge. The government has represented that it will not proceed on the campaign finance charge if The Bahamas objects.

So the United States asked the Bahamas to clarify that it meant to allow the U.S. to prosecute the campaign finance fraud charge, or else to consent to its prosecution. SBF went to court in the Bahamas and got an injunction temporarily barring the Bahamas from agreeing to that on the theory that it deprived him of his right to object under Bahamas law. As far a I can tell the Bahamas are still deciding what stance to take on most of the new charges the United States has added — that is, whether to consent under the Rule of Specialty to the United States prosecuting them even though they weren’t part of the extradition. However, on July 28, 2023, the United States reported to Judge Kaplan that the Bahamas had confirmed it did not intend to extradite SBF on the campaign finance count, and therefore the United States would abide by its treaty obligations and not prosecute that count:

The Government has been informed that The Bahamas notified the United States earlier today that The Bahamas did not intend to extradite the defendant on the campaign contributions count. Accordingly, in keeping with its treaty obligations to The Bahamas, the Government does not intend to proceed to trial on the campaign contributions count.

The United States is Correct To Abide By The Treaty

Glenn Greenwald ain’t dumb. He’s written many important and complex things about government misconduct. He still does occasionally. But today’s Glenn Greenwald is the Tucker Carlson toady and anti-Democratic partisan, and when there’s an opportunity to accuse the Department of Justice or a Democrat of a wild conspiracy, he takes it, however delusional.

Glenn’s ridicule here is dishonest or, at least, willfully ignorant. He spins it as if the U.S. is just being nice to the Bahamas, as opposed to abiding by treaty obligations. He doesn’t tell his readers about the treaty obligations at all. He doesn’t tell his readers that the United States has grown much more careful to abide by extradition treaties after 9/11 because treaty violations makes it much easier for other countries to rationalize not extraditing people we want. He doesn’t pretend to cite cases where the United States defied the Rule of Specialty and violated treaties on the grounds that the extraditing country was powerless, as he suggests the United States should have done. Glenn treats this some sort of substantial victory for SBF, despite the fact that the campaign finance charges have absolutely no cumulative effect on the already draconian sentence SBF faces on fraud charges involving billions of dollars. SBF’s sentence exposure has been reduced from “life plus cancer and we kill everyone in your family” to “life plus cancer and we kill everyone in your family except one of your second cousin’s three goldfish.”

I suspect, if pressed, Glenn Greenwald will say that it doesn’t matter that the campaign finance charges were a drop in SBF’s United States Sentencing Guidelines bucket; clearly the Department of Justice allowed itself to be bullied by the Bahamas to protect Democratic politicians from scrutiny for accepting SBF donations. Hence, Glenn’s theory is that the Department of Justice investigated SBF for campaign finance fraud, called attention to campaign finance fraud by charging SBF for it, and then decided to protect the Democratic establishment by . . . abiding by treaty obligations. It’s a very Greenwaldian scenario.

The United States has a long, embarrassing history of violating treaty obligations. To be fair, in connection with extradition treaties, the United States prefers not to violate them directly but just kidnap and specially render people without legal process at all. But the United States treating its treaty obligations professionally and seriously is a good thing. It’s the sort of adherence to the rule of law that Glenn, as a critic of abuse of power, used to demand. Now, though, he’s more like his braying followers, portraying the rule of law as some effeminate sigil of the decline of America:

Glenn richly deserves his new friends.

The urge to comment on events immediately, as they are happening, before we have the information necessary to evaluate them, is corrosive. It’s also overpowering and pervasive in the era of social media. Nobody wants to wait for tomorrow’s morning paper, or even tonight’s newscast. We want answers and we want them now. Many of us also want to be the ones providing those answers — the first ones providing those answers — for those sweet clicks, comments, likes, and attention. Accuracy and nuance are the casualties.

Today Robert Hunter Biden’s long-anticipated guilty plea on two misdemeanor counts of failure to file a tax return was derailed. You’ve seen the news by now, and if you haven’t, you’ve probably seen the social media reactions, many of which are nonsensical and uninformed.

The truth is, so far, elusive. There were reporters in the courtroom. But, judging from the news stories, and with the greatest respect to those reporters, it seems they didn’t completely understand what was happening. They couldn’t report many verbatim quotes (they should have brought someone who takes shorthand) and federal courts don’t allow broadcast or media recoding of proceedings. So we’re left with a series of impressions by reporters who picked up bits and pieces of what was happening. Many of those reporters are intelligent and sophisticated but it’s not clear they have the experience with federal criminal law to pick up exactly what was going on.

The truth further eludes us because we lack the most important document — the written plea agreement between the U.S. Attorney’s Office. Always read the plea agreement to understand a plea. I argued weeks ago, when news of the plea deal came out, that until we got the plea agreement we could not fully evaluate the many claims that Hunter Biden was getting a “sweetheart deal.” In many federal districts it would be filed as a matter of course before the plea hearing, the government said in an earlier filing that it would be filed, and it still hasn’t been filed, leaving crucial questions unanswered and making it very difficult to interpret today’s events.

Here’s what we know, and what we still need to know.

We know that Hunter Biden showed up in court to enter his guilty plea. A federal guilty plea is an involved process; it’s routine for it to last anywhere from fifteen minutes (very fast) to an hour (slow). It involves a searching inquiry by the judge into whether the defendant understands the terms of the deal, the rights they are giving up, the sentence and sentencing process they are facing, the facts supporting the plea, and the voluntariness of the deal. Today that process went sideways, as it sometimes does.

From press reports, it appears that U.S. District Judge Maryellen Noreika asked questions about the scope of the deal. Specifically, she asked whether the government was agreeing not to prosecute Hunter Biden further just on these tax issues, or on any other issues it was investigating, including the Foreign Agent Registration Act. The government responded that the deal only precluded the government from prosecuting any other tax crimes related to these facts; Hunter Biden’s lawyers said that was wrong and if that was the case there was no deal. The judge told them to go talk and work it out. Apparently they did - and Hunter Biden agreed with the government that he was only protected from further tax prosecution on these facts, not from other prosecutions based on other investigations — but the judge asked the parties to submit briefs clarifying the scope of the non-prosecution promise and to come back, and did not accept the plea.

This is strange, and we can’t interpret the extent of the strangeness because we don’t have the written plea agreement.

Federal plea agreements typically spell out, very explicitly, the government’s non-prosecution promises. A standard agreement will say that the government agrees that this specific U.S. Attorney’s Office will not prosecute the defendant further for the facts and circumstances described in the plea agreement, but that the deal doesn’t cover any other crimes and doesn’t bind any other office or entity. That’s very narrow. It’s also very explicit and not subject to easy misunderstanding.

So for things to go wrong here, one of the following had to happen:

• The government didn’t define the scope of its promise of non-prosecution in the agreement. That would be a huge mistake and very unusual.

• The government defined the scope of its non-prosecution promise in the plea agreement but the scope was vague or badly drafted. That’s unusual and also a mistake. They are normally extremely careful with this language. The fact that the judge saw fit to inquire about the scope of the deal makes this possibility plausible — if the plea agreement was as clear on this point as it should be, and the judge read it, the judge wouldn’t have to ask that question.

• Hunter Biden’s lawyers didn’t read the plea agreement carefully or didn’t understand the non-prosecution promise. Hunter Biden has experienced attorneys and that would be a huge and embarrassing blunder.

If I could read the plea agreement I could tell you which of these scenarios happened. But they haven’t filed the agreement and haven’t made it public, so we’re left to speculate.

The judge’s refusal to accept the deal for now was appropriate. If there’s no meeting of the minds — if the parties don’t agree on the terms of the deal — the judge shouldn’t accept the plea. Also, once uncertainty has been expressed on the record, it’s not that strange for the judge to say “go put it in writing and come back” rather than accepting their statement “ok we straightened it out now.” Federal judges are notoriously careful about the guilty plea colloquy. I would probably do the same about such a high-profile case — if there was any hint that a party thought the written plea agreement was ambiguous, I would want it fixed.

What this does not seem to suggest, at least based on the information we have, is that the judge has accepted GOP arguments that Hunter Biden is getting a sweetheart deal, or that she’s part of a GOP conspiracy, or that she’s ultimately going to tank the deal.

We may have to wait until the parties file the clarification requested by the judge. One would hope they’d file the plea agreement — amended or not — by then. That will answer questions about this hiccup (and, I think, make it easier to evaluate the “sweetheart deal” arguments).

For now, the only thing I am confident in saying is that somebody done fucked up. But I’m not sure who.

Updated later on July 26, 2023:

We now have the plea agreement and diversion agreement and we now know more. Politico got copies — the plea agreement governing the plea to the misdemeanor tax charges and the separate diversion agreement on the gun charge. Politico has posted them here. Based on reading them I think this is a combination of my second and third possibilities discussed above — the government was sloppy and Biden’s lawyers didn’t read carefully.

First, the plea agreement for the misdemeanors doesn’t have any non-prosecution language. That’s weird, and bad drafting. It means that the deal, the key bargain of the case about which charges he’ll be prosecuted for, isn’t fully contained in that agreement. It doesn’t and can’t stand on its own. That’s completely bizarre to me, because the plea agreement (as opposed to the diversion agreement) is the document governing how Hunter Biden is going to plead guilty to something, and it’s the place where you would expect that term of the agreement to be.

Second, the diversion agreement — that is, the document that describes how if Hunter Biden stays clean for two years the government will dismiss the information charging him with being an addict in possession of a firearm — does have the non-prosecution agreement. Here it is:

So the agreement says that the government won’t prosecute Hunter Biden for any federal crimes “encompassed” by the statements of fact attached to the plea agreement (about the tax crimes) or the diversion agreement (about the gun crime). But what does “encompassed by” mean? I think I know what the government thought it meant — they thought it meant crimes specifically described and called out in the statements of fact. But as Josh Barro, my podcast co-host on Serious Trouble, pointed out, the plea agreement also has some language about how Hunter Biden earned the income he didn’t report. That includes activities that are the subject of GOP accusations of misconduct, and that language refers to actions that might constitute crimes like failure to register as a foreign agent:

So when the diversion agreement says that the government won’t prosecute crimes “encompassed by” that statement of facts, does that mean any crimes of which those activities are a part? It’s not clear. Friends and neighbors, that is shitty drafting. And if you’re Hunter Biden’s lawyer and telling your client that he can’t be prosecuted for crimes related to those income sources because of that language, that’s reckless advice and bad lawyering. It’s a failure by both attorneys. If Judge Noreika spotted that issue, called it out, and asked for an explanation, then good for her — she’s doing her job, which is to make sure the defendant understands the deal they are accepting.

Another oddity: the agreement is between the U.S. Attorney’s Office for the District of Delaware and Hunter Biden. But the non-prosecution language specifies that the “United States” agrees not to prosecute him for other crimes “encompassed” in those factual statements. Is that intended to bind other districts as well? If so I would expect that to be far more explicit — because the District of Delaware doesn’t have the power to bind other districts. In fact, it’s very typical for federal plea agreements to specify, at length, that they don’t bind any other district or federal, state, or local prosecuting authority. If you think this is a pedantic issue, I invite you to remember the controversy over the Jeffrey Epstein plea agreement from Florida, which threatened to derail his New York prosecution until he thoughtfully killed himself.

Let me call out one final odd feature of this deal structure. Again, the promise not to prosecute is kept in the diversion agreement, not the plea agreement. That means that if Hunter Biden breaches the diversion agreement by using drugs or alcohol — a relapse that is frighteningly common with addicts — that means that he can lose the protection of the non-prosecution agreement on everything, not just the gun charge. It means that he could get prosecuted for other tax crimes “encompassed” by the statement of facts on the plea agreement. The diversion agreement calls this out specifically:

This seems exceptionally reckless for Hunter Biden, given the risks of an addict relapsing. Did Hunter Biden understand that if he relapsed he would lose the protection of any non-prosecution promise, and could be prosecuted for more tax crimes from the same time period?

To sum up: this set of agreements is vaguely drafted. The government should have drafted them more carefully (for instance by making the non-prosecution language call out tax crimes specifically). Hunter Biden’s lawyers should have seen this as an issue and clarified it. It’s not clear to me why they structured it with the non-prosecution promise only in the diversion agreement; it makes the whole thing more vague. I blame all the lawyers involved.

We’ll see what the parties say in the supplemental brief they agreed to file with the judge. Presumably now that they’ve been kicked in the ass over the issue they will make it unmistakably explicit.

Second edit: A site that I would characterize as anti-Biden has posted what purports to be a transcript of today’s hearing. I would be surprised such a long transcript would be finished that fast but it’s possible.

Assuming for the moment that it’s real (and it’s too elaborate and detailed for me to think it’s a hoax), it shows a combination of what I said above and other factors: the judge was put off by factors including the odd division of the matter into two separate agreements, the unclear relationship between the plea and diversion agreements, the unclear nature of what happens if she rejects one and accepts the other, the ambiguity of what happens to the plea agreement if the diversion agreement is breached, the ambiguity of what happens if the “addict in possession” law underlying the diversion agreement turns out to be unconstitutional, the fact that Biden’s attorneys and the government’s attorneys did not seem to have a meeting of the minds - at least beyond the hearing — what crimes are covered by the non-prosecution promise, whether the government stuck the non-prosecution promise in a separate agreement to prevent her from rejecting it (which she might have been able to do if it was in the plea agreement for complex statutory reasons), and the fact that the diversion agreement requires the judge to make the determination of whether Biden is in breach and therefore loses the benefit of the non-prosecution promise, which she was not comfortable doing and thought perhaps she shouldn’t do. I think she’s wrong on that last one, but everything else reflects a careful federal judge recognizing that a plea agreement structure is a complete train wreck that the parties did not carefully consider. This is embarrassing.

Also, the transcript seems to show that the parties and the judge all think that the GOP filing attacking the plea is nonsense and the judge doesn’t care about it.

But for many years, American courts have disagreed on whether there is also a subjective element to the definition of “true threats,” and if so, what it requires. Put another way, does the First Amendment require that the government prove that a speaker intended that their statement be taken as a threat, or at least that they were reckless or negligent about whether it would by taken that way? Courts have reached different conclusions. As recently as 2015 the Supreme Court has punted rather than resolve the dispute. Now, finally, the Court has resolved the question: the First Amendment requires that, at a minimum, the government prove that a speaker was reckless about whether their statement would be interpreted as threatening.

The case is Counterman v. Colorado, decided today. Counterman sent numerous unwelcome social media messages to a local musician. She reasonably interpreted the entirety of the communications in general, and some of them in particular, to be frightening, and withdrew from public life. Charged with stalking under a Colorado state law, Counterman argued that he lacked subjectively threatening intent — not a completely implausible defense, since he seems quite mentally ill. He was found guilty at trial, and the Colorado Court of Appeals affirmed, rejecting Counterman’s argument that the jury should have been required to find that he had some wrongful intent that his statements be taken as threats.

Counterman

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A divided Supreme Court reversed. The split went like this:

• Seven justices — everyone but Thomas and Barrett — think that the First Amendment requires the government to prove some kind of subjectively wrongful mental state to show that a statement is a true threat.

• Five justices — Kagan, Roberts, Alito, Kavanaugh, and Jackson — thinks that showing recklessness is sufficient.

• Two justices — Sotomayor and Gorsuch — think that the recklessness standard is sufficient for this case, because it involves repeated unwelcome contact, but that true threats more generally should require intent to threaten.

• Two justices — Barrett and Thomas — think the First Amendment doesn’t require a subjective component to the true threats test at all.

• Finally, Justice Thomas — like Cato intoning Carthāgō dēlenda est — takes the opportunity to demand that the Court overturn the last half-century of defamation law (it makes a kind of sense in context) because it’s liberal rubbish.

So. To the practitioner, or to the internet tough-talker, what does this mean? It means that the law of the land, at least 7-2, is that a threat is only outside the protection of the First Amendment if:

• A reasonable person, familiar with the context, would interpret the threat as a sincere statement of intent to do harm, and

• The speaker was reckless about whether the threat would be taken sincerely — that is, they “consciously disregarded a substantial risk” that it would be taken seriously.

There are many, many more pages for law geeks, but that is the meat of it. Some high points to watch for:

• Several excellent examples of the Supreme Court game “okay, yes, that’s what we said, but what we meant was this.”

• The dissent citing Chaplinsky v. New Hampshire (the “fighting words” case) in passing and Justice Sotomayor absolutely demolishing it in her footnote 10, pointing out what an obvious dead letter it is.

• Everyone standing politely aside while Thomas rants.

• Justice Sotomayor articulating the problem with a unified definition of “reasonable person,” particularly on the internet:

The risk of overcriminalizing upsetting or frightening speech has only been increased by the internet. Our society’s discourse occurs more and more in “the ‘vast democratic forums of the Internet’ in general, and social media in particular.” Packingham v. North Carolina, 582 U. S. 98, 104 (2017) (citation omitted). “Rapid changes in the dynamics of communication and information transmission” have led to equally rapid and ever-evolving changes “in what society accepts as proper behavior.” Ontario v. Quon, 560 U. S. 746, 759 (2010). Different corners of the internet have considerably different norms around appropriate speech. Online communication can also lack many normal contextual clues, such as who is speaking, tone of voice, and expression. Moreover, it is easy for speech made in a one context to inadvertently reach a larger audience.

This century, the Supreme Court has protected the First Amendment right to free speech more vigorously and strictly than any other constitutional right. This decision is more of a middle-ground approach, neither as speech-protective nor as censorship-friendly as it could be, as illustrated by the concurring and dissenting judges.

In my view, the recklessness standard merely repeats the problems of the so-called “objective standard.” Let’s take the familiar example of Justin Carter, a stupid kid on a gaming forum trash-talking, whose trash-talking is observed by a middle-aged mom from, say, Canada. I’m not picking on Canada, that’s a real-world example. Under the Supreme Court’s decision today, to punish the trash-talking Justin for a true threat the government would have to prove that (1) a reasonable person would take the trash-talk as a sincere expression of intent to do harm, and (2) Justin consciously disregarded a substantial risk it would be taken that way.

But how is that danger evaluated, exactly? Is Justin required to assume that people outside the League of Legends forums (a dump site of arrested adolescence and jibbering mother-shamers) are going to read his post, and therefore assess how his post will be taken by Canadian mothers? Or is he only required to consider his intended or likely audience? Is it enough that Justin can introduce evidence about his expectations of how the unbathed denizens of his forum would understand him, perhaps through expert testimony? Is it enough to argue to the jury that idiot manchildren rarely comprehend their words may land differently on different ears? I know how “reckless disregard” would work in a monoculture, but what about in a swarm of violently disputing subcultures?

I don’t think Counterman will lead to a surge of threat prosecutions. Proving recklessness already carries many of the challenges of proving intent to threaten. Many jurisdictions already assumed that recklessness or negligence was enough. This isn’t a sea change, it’s what passes for a clarification — but one that illuminates how messy our fundamental legal standards are in practice.

Now “recuse! recuse!” falls from nearly every lip, and the disqualification statute governing federal judges is cited, unconvincingly and suspiciously vaguely, like a Canadian girlfriend. My role is that of an emo legal Cassandra, to tell you in vain that recusal law doesn’t do what you want it to do. Your role is probably not to listen to me, possibly noisily. One of us has offended one or more gods; that’s how we get into tsuris like this.

Let’s begin with the statute. The relevant law is Title 28, United States Code, Section 455. It begins with a broad, rather vague pronouncement:

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.1

We’ll get back to that. Suffice it to say it doesn’t mean what you hope it means. A plain-language reading is not reliable.

The statute goes on to enumerate various specific circumstances requiring disqualification, for instance:

(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;

(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

You’re probably saying “wow, that (b)(1) sure seems broad, it covers any time that a judge is biased!” Not so. Once again, a plain-language reading is not reliable.

Federal courts have repeatedly interpreted Section 455 narrowly in several crucial ways. They have emphasized that the question of whether a judge is biased must be decided “objectively: “whether an objective, disinterested, lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge's impartiality.” But here’s the thing: once again, the plain language reading of this test is not reliable. One of the hazards of a black robe is a tendency to think that your views are the (only) objectively reasonable ones. The law on Section 455 reflects a set of judicial norms and values, not necessarily the norms or values of a “lay observer.”

For instance, you, an unlettered peasant, may believe that it is reasonable to question a federal judge’s impartiality when the president who appointed them is a party to a case. But federal judges think that’s not objectively reasonable to believe, so it’s quite well established that it's not a ground for recusal. I can certainly see policy reasons that you don’t want to kick judges off cases based on who appointed them, but saying that no objective lay observer would doubt the judge’s impartiality is frankly delusional. What federal judges actually mean by this is “no reasonable person fully immersed in federal judicial history and culture and accepting its norms would doubt this judge’s neutrality.”2 It’s deeply unreflective.

Similarly, you may think that it’s reasonable to question a judge’s impartiality when they make terrible, stupid rulings against one party or for the other, or when they say angry, intolerant stuff about one of the parties. But as federal judges will explain, it’s just not. Here’s how Justice Scalia explained it more than thirty years ago:

First, judicial rulings alone almost never constitute a valid basis for a bias or partiality motion. See United States v. Grinnell Corp., 384 U.S., at 583, 86 S.Ct., at 1710. In and of themselves (i.e., apart from surrounding comments or accompanying opinion), they cannot possibly show reliance upon an extrajudicial source; and can only in the rarest circumstances evidence the degree of favoritism or antagonism required (as discussed below) when no extrajudicial source is involved. Almost invariably, they are proper grounds for appeal, not for recusal. Second, opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible. An example of the latter (and perhaps of the former as well) is the statement that was alleged to have been made by the District Judge in Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921), a World War I espionage case against German–American defendants: “One must have a very judicial mind, indeed, not [to be] prejudiced against the German Americans” because their “hearts are reeking with disloyalty.” Id., at 28 (internal quotation marks omitted). Not establishing bias or partiality, however, are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display. A judge's ordinary efforts at courtroom administration—even a stern and short-tempered judge's ordinary efforts at courtroom administration—remain immune.

Now every time a lawyer says “almost never”, there’s an inevitable reaction:

But there’s really not. Motions to recuse (which any party to the case can bring) are common. They are brought by three categories of people: (1) pro se litigants who think any ruling against them is a travesty of justice, (2) dumb lawyers, (3) lawyers who have no client control or who are using the motion as a vehicle for grandstanding. Motions are almost never — I am tempted to say “functionally never” — granted because of how the judge acted in the case. Almost all of the cases finding that disqualification is mandatory involve an “extrajudicial source” — that is, a sign of bias arising outside the judge’s conduct in the case, like evidence that the judge has stock in a company that’s a party, or previously represented a party as a lawyer, or received information about the case through an extrajudicial source. A judge’s rulings and behavior are only grounds for recusal when they are “so extreme as to display clear inability to render fair judgment.”

It’s difficult to convey to you what a solid wall of precedent there is on this point, and how hopeless a motion to recuse looks to anyone familiar with the law. That’s because this belief — that it’s objectively unreasonable to doubt the neutrality of a judge who makes ridiculously partial rulings or says inflammatory things — is immovably ensconced in the judicial mindset but completely ridiculous to most normal people. There are few better examples of what a moonbeams-and-unicorns invention of fancy the “reasonable person” test can be.

So: any ruling that Judge Cannon must be recused because of her frankly lawless rulings for Trump would be extremely and norm-breakingly unusual.3 Does that mean there’s no way to get her off the case? No.

There’s another procedural vehicle with a more ambiguous, discretionary standard. A United States Court of Appeal may, when reviewing something properly before it, “cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.” On quite rare occasions, Courts of Appeal use that power to send a case back to a different United States District Judge. That tends to happen when the trial court stubbornly sticks to a ruling the Court of Appeals said was wrong, or where the record reflects extreme intemperance by the judge. Here’s how the Eleventh Circuit — which covers federal courts in Florida — puts it:

We can order reassignment “as part of our supervisory authority over the district courts in this Circuit.” United States v. Torkington, 874 F.2d 1441, 1446 (11th Cir.1989); see 28 U.S.C. § 2106 (“[A] court of appellate jurisdiction ... may remand the cause and ... require such further proceedings to be had as may be just under the circumstances.”). In the absence of actual bias, we consider at least three factors in determining whether to reassign a case: “(1) whether the original judge would have difficulty putting his previous views and findings aside; (2) whether reassignment is appropriate to preserve the appearance of justice; (3) whether reassignment would entail waste and duplication out of proportion to gains realized from reassignment.” Torkington, 874 F.2d at 1447. Reassignment can become warranted on the second or third appeal, even though it was not warranted on the first or second appeal. See Shaygan, 652 F.3d at 1318–19 (citing United States v. Martin, 455 F.3d 1227, 1242 (11th Cir.2006); United States v. Gupta, 572 F.3d 878, 892 (11th Cir.2009)).

However, courts consider this power “extraordinary” and “do not use it lightly.” For instance, in the case cited above, the 11th Circuit declined to send the case to a new judge even though the judge had stuck to a ruling the 11th Circuit had previously rejected and conveyed his disapproval and dislike of the case and subject matter. So, getting the Court of Appeals to reassign a case is very rare and an uphill battle.

The most likely scenario for an order disqualifying Judge Cannon is if she makes some other lawless and remarkable order in Trump’s favor and the government seeks extraordinary review (not a regular appeal, which could take years), gets the 11th Circuit to overturn her again on that substantive issue, and also asks the court to send the case back to another judge. Judge Cannon’s recognition of that possibility — and her perception of how blunt and embarrassing the 11th Circuit’s last order was — might lead her to be more cautious and temperate. But even if she issues another wild and crazy order, it’s an uphill battle to get the 11th Circuit to take her off the case.

In short: Judge Cannon almost certainly won’t be removed from the case for bias unless (1) the court makes an unprecedent and norm-shattering ruling or (2) she delivers another travesty of an order and the 11th Circuit kicks her off. The first is extremely unlikely, the second is somewhat unlikely.

The law isn’t always what a plain reading of a statute would lead you to expect; often you need to know the history and context. More importantly, the law isn’t what you wish it were.

Sorry. This is just how God made me.

Edited to add: I don’t have anything against Isaac Chotiner or the New Yorker, but this article on recusal is bad and they should feel bad. First, it quotes Section 455’s plain language but does not disclose — or show any knowledge whatsoever of — the wall of authority discussed above that completely changes that meaning. He also says that Cannon would hear the motion to recuse her herself, but that's not true. The article promotes misunderstanding the relevant standard.

The Kobayashi Maru speech is about no-win scenarios. The life of the law is full of them. Good lawyers can often avoid them or mitigate their impact, or negotiate a resolution that makes them unnecessary, but can never completely eliminate them. Sometimes you are going to lose. Sometimes you KNOW you are going to lose. This concerns young associates. Ken, they say, we’re going to lose this motion. What am I supposed to do? The answer is that you prepare competently, advocate vigorously, and fight for your client’s rights. You act like you have a chance because the client needs you to do that and the system depends on you doing that. You act like you have a chance because doing a vigorous, competent job can preserve your client’s trust in you, ease the impact of a loss, and sometimes even achieve a seemingly impossible win.

I’ve been thinking about the Kobayashi Maru speech since Trump was indicted.

Yesterday, on our Emergent Situation Episode of Serious Trouble, Josh and I sparred a bit over the moral and political philosophy of Jack Smith’s decision to prosecute. I pointed out that the somewhat predictable assignment of the case to Judge Aileen Cannon — who proved herself to be an arguably lawless Trump partisan when she entertained his attempts to derail his own investigation — will make it extraordinarily difficult to convict him. If Judge Cannon presides over the case she can derail the prosecution in myriad ways, some of them unreviewable, if she wants to. Moreover, there’s reason to doubt that a Florida jury will convict Trump. Finally, and perhaps most importantly, striking Trump down with a federal indictment may make him more powerful than we can possibly imagine. Trump will use the prosecution to energize his base, propagandize “independents,” and fundraise from rubes. It’s very possible it will make it easier to win the Republican nomination and plausible it will help him win the Presidency, which he will use to pardon himself and further demolish the rule of law.

Does that mean that the Department of Justice shouldn’t do it? To quote a bit of our argument:

Josh Barro:

Well, I mean, that's a philosophical question. And I guess it might be there are other scenarios where it doesn't go exactly in the way that we're describing here, but we just sketched out a scenario in which this action by the Justice Department fails to uphold the rule of law and actually undermines it. I guess this is a question of whether we have a consequentialist ethics, but it's the idea that you must do this because you must do it out of fealty to the rule of law. That assumes a certain moral framework. I'm laying out a possibility that in fact this is quite damaging to the rule of law, or that you've described that it's likely to end up with an outcome that's quite damaging to the rule of law.

Ken White:

Well, I disagree and here's why. The rule of law doesn't mean that everyone is always going to do the right thing. The process of the rule law presumes that sometimes there will be bad actors. Sometimes jurors will nullify for bad reasons. Sometimes judges will make bad calls. The rule of law is about we have this system, it's imperfect, we're going to put the person through the process because that's how we do things. And so, ultimately, even if you think you might get a bad unfair ruling, what you do is you put it through because you want to demonstrate that no one's above the law. And so, we have to take the shot. And because if we don't, because if you don't pursue a criminal because the criminal has put a crooked judge on the bench, then you're really completely giving up.

Josh Barro:

Right. But the Justice Department makes strategic decisions all the time about what crimes not to charge. And I mean, in this instance, even if you're thinking about holding Trump accountable, they have a parallel investigation into matters related to January 6th that presumably would be charged in Washington DC if it were ever charged. If you're looking at a situation where you have a menu of options about what you can charge someone with, all of the stuff we're describing here, those sound like considerations that would weigh in favor of prioritizing the January 6th prosecution, trying to move that one first.

So who is right? If charging Trump with overt, obvious crimes is doomed to fail for political reasons and may have negative political effects, should the Department of Justice do it?

Of course I’m right.

Let us start, as you would expect, with pedantry. What do the rules say? The rules pretty clearly say that if political and other non-legal factors suggest prosecutors will lose a righteous case, they should bring it anyway. From the Principles of Federal Prosecution in the U.S. Attorney’s Manual:

The attorney for the government should commence or recommend federal prosecution if he/she believes that the person's conduct constitutes a federal offense, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction, unless (1) the prosecution would serve no substantial federal interest; (2) the person is subject to effective prosecution in another jurisdiction; or (3) there exists an adequate non-criminal alternative to prosecution.

But what about when a potential defendant’s popularity, or the unpopularity of the particular rule of law, makes getting a conviction difficult? The rules address that:

Where the law and the facts create a sound, prosecutable case, the likelihood of an acquittal due to unpopularity of some aspect of the prosecution or because of the overwhelming popularity of the defendant or his/her cause is not a factor prohibiting prosecution.  For example, in a civil rights case or a case involving an extremely popular political figure, it might be clear that the evidence of guilt—viewed objectively by an unbiased factfinder—would be sufficient to obtain and sustain a conviction, yet the prosecutor might reasonably doubt, based on the circumstances, that the jury would convict. In such a case, despite his/her negative assessment of the likelihood of a guilty verdict (based on factors extraneous to an objective view of the law and the facts), the prosecutor may properly conclude that it is necessary and appropriate to commence or recommend prosecution and allow the criminal process to operate in accordance with the principles set forth here.

So the Principles of Federal Prosecution suggest that if Jack Smith thinks that if Trump’s prosecution serves an important federal interest (it does) and the evidence is objectively factually and legally sufficient (it is), then he’s bound to bring the case even if Trump’s popularity makes a unanimous verdict difficult, risks a partisan judge, and threatens political upheaval. As Josh suggests, Jack Smith can and should make strategic decisions about what approach is soundest and most likely to lead to conviction. But the indictment in this case is overwhelmingly strong - one of the most devastating on its face that I’ve seen in my career. If Jack Smith can prove those facts, that is far more than enough to convict Trump. The only arguments against it are political.

In my view, it’s also the morally and philosophically correct course.

First, jury nullification can be a force for justice and a bulwark against tyranny. It can also be an expression of ignorance and bigotry and an expression of injustice. Prosecutors should consider justice but not be deterred by the chance that jurors should be unjust. Anything less means that you let jurors decide who is or isn’t protected or bound by the rule of law.

Second, some judges will always be partisan, and some politicians will seek to appoint or elect partisan judges. It’s not fair. But nobody promised you it would be fair. Deciding not to prosecute because of the risk of biased judges cedes justice to them and also relieves them of the consequences of being biased — public opinion, opinion of their colleagues, reputation, and legacy. It lets them be biased cost-free. If you confront bias, and force judges to be biased in the daylight, it’s harder for them, and social and cultural factors may deter them.

Third, it’s corrosive and unjust to say that we won’t hold people to account because they are popular and powerful. The system doesn’t need more of that, thank you, we’re all stocked up. It’s already a fact, we don’t need to make it a policy as well. Strongmen already fare indescribably better than normal citizens when facing the justice system. Going full-on junta and making it an official principle of prosecution not to prosecute the powerful means abandoning even an aspiration of equality before the law.

Fourth, yielding to people who say “if you punish me or my friends for breaking the law I’ll hurt you” is a terrible way to run a society. It’s governance by thugs. If someone says “if you apply the rule of law to hold me accountable for my conduct, I will later abuse the rule of law to punish you,” you know that person is a dishonest, dishonorable partisan. There is no rational basis to believe that a dishonest, dishonorable partisan will ever behave well. In other words, the proposition “Trump and his cronies will abuse the system if we prosecute them, but if we don’t, they will behave” is deeply dubious. Paying the Danegeld — whether in coin or in abandonment of principles — doesn’t deter the Danes from reaving any more than throwing bacon at a dog makes it run away. To the contrary, abandoning the rule of law to avoid angering Trump and his ilk makes them bolder, not more compliant.

It’s popular to say America’s in civilizational decline. It’s possible; I don’t know. I’m skeptical of narratives that make us extraordinary. But I know this: if we’re going down, we should go down swinging, not cringing. Donald Trump boldly, gratuitously, arrogantly broke the law. He’s bragged about being able to do so without consequence. He’s not being persecuted, he’s being provided with due process that will give him myriad ways to defend himself and vindicate his rights, and his vast resources make him uniquely suited to do so. If the Department of Justice doesn’t take the shot, then what’s the point of it?

Where did I get those numbers? I made them up, obviously. Duh. But I’ve been arguing this point for a long time. The epithet “cancel culture” is overwhelmingly used to express disagreement with speech, not to defend speech. Rather than a principled description of people trying to prevent others from speaking, it’s a form of special pleading that some kinds of criticism are too mean, too uncivil. It’s certainly possible to approach a speech incident and analyze it in some kind of methodical way, that’s not the way the term is generally used. It’s generally used to mean “I disagree with these critics and their values and values I associate with them.”

For a prime example consider, consider Boston University President Robert A. Brown.

President Brown is upset that some students protested and heckled Boston University commencement speaker David Zaslav, CEO of Warner Bros. With impeccable timing that only a university administration could achieve, BU announced Zaslav as its commencement speaker the day after the Writer’s Guild of America went on strike. This generated controversy. This led to letters asking BU to “cancel” Zaslav, protest signs, protests, and some heckling and swearing at the commencement, mostly focused on labor issues.

This, President Brown claims, was CANCEL CULTURE.

Our students were not picking a fight. They were attempting to implement the cancel culture that has become all too prevalent on university campuses. The hundreds of virtually identical protest emails we received in my office in advance of Commencement came with an explicit “cancel” hashtag, indicating an aim to prevent Mr. Zaslav from speaking. The attempt to silence a speaker with obscene shouts is a resort to gain power, not reason, and antithetical to the mission and purposes of a university.

This, of course, is sheer jiggery-pokery. President Brown got a lot of similar emails with #cancel in them because labor groups encouraged students and alumni to write them and provided a form.

Moreover, the protests and heckling against Zaslav weren’t because he said something controversial. They weren’t even about his ham-handed meddling with your binge-watching. The protests were explicitly about labor issues, which is why the chants included both obscenities and slogans like “pay your writers.”

Now, I recognize that it’s fashionable to claim that everyone knows what “cancel culture” means and that it’s just pedantry and dishonesty to claim you don’t. But are labor protests cancel culture now? Is not paying writers a form of controversial expression that we ought to hear out and react to with refined and well-moderated debate? Is the entire history of the American labor movement's raucousness a history of woke censorship?

Or is that all cynical partisan bullshit, a way to delegitimize certain (usually left-leaning) political views while pretending to be noble and pro-free-speech?

President Brown’s complaint is a halfhearted yawp, an old-school pearl-clutch about civility dressed up unconvincingly in cancel culture terminology. He begins with the obligatory genuflection to free speech:

Some graduating students stood and turned their backs to the speaker and displayed signs. There were organized chants imploring Mr. Zaslav to pay his writers. For a university committed to free speech, protests are appropriate and common. The right to protest and freely express strongly held convictions is essential to sustaining the liberal democracy that we enjoy.

The protesters were a minority among the 23,000 people assembled on Nickerson Field. Students and guests applauded and cheered Mr. Zaslav as he described his life journey and offered advice to the graduates. Others listened respectfully. As it should be, Boston University is a noisy place of frequent, vigorous debate and discussion and where no one monolithic point of view dominates.

Exactly. Protests at graduation — including back-turning, signs, heckling, and the occasional rude word are as American as apple pie or school shootings. Angry protests of controversial-to-some commencement speakers is common, as is controversy about the controversy. As commentators have long pointed out, a university’s choice of a particular speaker is an expressive act, and protest is a response to that expressive act.

Despite this, President Brown is mad. None of the coverage I have seen supports the idea that the protesters stopped Zaslav from speaking or the audience from hearing, as the quote above suggests. As I’ve argued before, arrogating to yourself the power to decide who can speak and who can listen is contemptible and could reasonably be described as “cancel culture.” No, President Brown seems upset that Zaslav and graduates and their families had to hear some heckling and rude words.

But what we witnessed on Nickerson Field during Commencement veered, regrettably, in a different direction. A handful of students shouted obscenities at Mr. Zaslav. I flinched, as my reaction harkened back to my teen years, over half a century ago, on the south side of San Antonio, Tex. In that era, shouting the words that I heard from the field would be the precursor to a fistfight. I can’t imagine how Mr. Zaslav felt hearing these obscenities directed at him. I have apologized to Mr. Zaslav for the behavior of these students.

Obscenities? In Boston? Horrors!

The students who were appallingly coarse and deliberately abusive to Mr. Zaslav were entitled to attend Commencement because they were being awarded degrees that they earned from Boston University. They sought to make a statement, out of passionate conviction, but in the moment, they forgot that in a liberal democracy, personal autonomy and freedom of speech come with responsibilities. One responsibility, particularly in an institution for which freedom of speech is the oxygen that sustains our mission, is respect for the speech rights of others. The deliberate effort to silence a speaker is at odds with this fundamental value. I am disappointed that some members of our graduating student body seem painfully unaware—or perhaps even hostile to—this idea.

Wait a minute, President Brown. You’re begging the question. How did a “handful of students” shouting obscenities amount to a “deliberate attempt to silence a speaker?” Again, President Brown, you said yourself just a few paragraphs before that Zaslav was able to speak and the crowd to listen.

I am also disappointed at the insensitivity to our many guests—especially parents and grandparents—who came from far and wide to celebrate the success of a cherished relative. The willingness to spoil the occasion for these literally thousands of guests to not only make a point, but also literally prevent the speaker from conveying his message, was painful and embarrassing to witness. I would stress that from my vantage point—and that of others—the individuals behaving badly constituted a small minority. But that fact does not diminish my disappointment.

Oh, God, somebody’s grandma may have heard the word “fuck”? That’s terrible. But again, how did they “literally prevent the speaker from conveying the message”? It seems almost as if President Brown is mad at something other than “silencing” . . . .

On reflection, it seems to me that the incivility on Nickerson Field is indicative of the divisions in our country. People shouting anonymously at each other, accomplishing nothing but feeling gratified for doing so, while generating material to post on social media. In our specific case the shouters infringed on the rights of others—to be heard or, more simply, to celebrate a milestone for a new graduate in a ceremony not disfigured with obscenities. We must do better and be a place where freedom of speech and the vital instrument of lawful protest can coexist and foster every individual’s sense of belonging.

There we go. Now we’re hearing the truth. It’s about civility, and about Kids These Days and That Terrible Social Media. Thrown in the imagined “right “ to not have a ceremony “disfigured by obscenities”. (Note: there is no such right, but making up imaginary rights is absolutely a thing in "cancel culture" discussions..) Take out the social media reference and this could be any old person griping about Kids These Days stretching back to Socrates.

Look, there’s nothing wrong with making a point about civility. Want to argue that protestors shouldn’t say “fuck?” Knock yourself out. Want to decry rude signs at commencements? I mean, I guess, if that’s your thing, but far better to shade the sign-waivers like Gerald Ford did. Want to argue that heckling at commencements is uncivil? Great! That’s a specific critique that can be debated. Heckling at commencements is at at least as old as I am as an American tradition, so maybe ease up on the Kids These Days aspect of it, but let ‘er rip. Let a thousand civility debates bloom.

But unless you are, and pardon my incivility, an utter fucking hack, please spare me the “cancel culture” gloss. Protesting commencement speakers is free speech. Slapping on the “cancel culture” label is a transparent attempt to delegitimize dissent, usually dissent from the left, and to make yourself a free speech hero instead of someone with an opinion about civility. Maybe you’re not being a right-wing hack with this spin, but you are, at a minimum, being a useful idiot for right-wing hacks.

Do better.

I wrote this eleven years ago about the death of Rodney King and about the rhetoric we use to justify or condemn how the police treat people, but I think it holds up today, and increasingly applies to how citizens use violence against each other. It’s been edited for my general illiteracy and to remove dead links. It grieves me how little has changed, despite a temporary surge of concern for police violence. Some people reacted to Jordan Neely’s killing by being mad at Jordan Neely; they remind me at the people who were incensed at Rodney King’s funeral 11 years ago.

They buried Rodney King this weekend. They came to praise the man they buried, not to condemn the criminal justice system illuminated by his videotaped beating. For the most part, speakers respected the family’s wish that the service be about remembering the man, not the politics. Indeed, speakers praised King’s capacity for forgiveness, an attribute that once exposed him to ridicule. “People should not be judged by the mistakes that they make, but by how they rise above them,” said eulogist Al Sharpton, a man with reason to hope fervently that proposition is true.

But while King — the man — inspired words about family and love and forgiveness at his funeral, King — the man and the symbol — still inspires raw hatred and outrage. Skim the comments of any news article about him, like this USA Today story about his funeral:

As usual this ass bag sharpton has to get his time in the spot light….and lets not forget king ran because he was on probation…..high as a damn kite….speeding…..once they got him stopped he continued violent behaviour. Ohhhh and after he got his money he was once again arrested and jailed for doing the same thing…..violating his probation….. the content of his “character” and his continued nefarious behaviour spoke volumes about him. He made the decisions that drove his life…and death.

Or check out the comments at National Review Online, which are fairly representative of some political blogs.

Rodney King committed numerous crimes in his life. He went to jail for robbing a grocery, he drove dangerously under the influence serially, he struck his wife with his car. Whatever his capacity for forgiveness and for rising above such things, he led a troubled life filled with significant bad behavior. But such people die every day, and nobody gets too exercised when folks say nice things at their funerals. Why the rage about Rodney King?

I think it comes down to this: being beaten by the police doesn’t make you either a good person or a bad person, but some people would like to believe that it does.

Some people have portrayed Rodney King as a hero. Perhaps there was something heroic about asking “can’t we all get along?” during the riots — certainly it subjected King to years of scorn in some circles. But there was nothing heroic about speeding under the influence and running from the cops out of fear of taking a parole violation. There’s nothing inherently heroic about getting the shit kicked out of you by a crowd of cops. It can happen to good people; it can happen to bad people; it can happen to most of us who are in between.

Just as some have portrayed King as a hero for being beaten, some have portrayed him as a villain for the same reason, and done so well out of proportion to his crimes. That may be because he ushered in an era in which citizens increasingly record the police — a trend welcomed by critics of police, but controversial in circles accustomed to deference to police. It may be because the Rodney King criminal and civil trials were the most visible attempt of the 20th Century to hold police liable for excessive force against civilians — an event that is not welcome among those who have internalized more than sixty years of thin-blue-line law-and-order political rhetoric. It may be because King was black and many of the officers who beat him were white and some are infuriated at the suggestion that race still plays a part in how people are treated in America.

But portraying Rodney King as a hero, or as a villain, plays into the central narrative of our criminal justice system, one that offers the ultimate excuse for cutting corners, giving police the benefit of the doubt, looking the other way at constitutional violations, putting our thumbs on the state’s end of the scales of justice. He got what he deserved — that’s what one side says, cutting through facts and law and reasoned analysis to pure us vs. them. He didn’t deserve that, says the other side, unwittingly lending support to the implicit argument that there are some who do. But deserve‘s got nothing to do with it. Heroism and villainy have nothing to do with it. We have to demand that everyone be treated justly, whether our viscera tell us that they do not deserve the rule of law at all. Rodney King should have been spared excessive force not because he’d earned respite, but because we extend it to everyone. We do so as a measure of grace, and because it’s so foolish and perilous to let the state (or the mob) decide who deserves rights and who doesn’t. Neither the state, nor the mob, will ever conclude that you deserve justice if it sets its eye upon you.

Don’t believe me? Consider the desserts dished out by law enforcement, as documented here by Radley every day. Consider Kelly Thomas, a disturbed homeless man beaten to death by police. As in Rodney King’s case, police said that Kelly Thomas deserved it because he was “combative.” Consider Lorna Varner, an 86-year-old grandmother tased by police in her bed. Lorna Varner deserved it because she took an “aggressive stance” with a knife in bed — to the extent her oxygen mask allowed her. Or consider Malaika Brooks, a pregnant woman tased by Seattle police. She deserved it because she wouldn’t sign a speeding ticket (for going 12 miles over the limit) or get out of her car in the presence of the sort of men willing to tase a pregnant woman. Or consider the hordes of dead dogs that Radley writes about here and that we write about at Popehat. They deserved it for, I don’t know, barking, or (in the case of some notable puppies) “charging.” The state will always have an excuse for why the recipients of its force deserved it.

Part of protecting rights is committing to protect them without caring too much whether the rights are held by people who are awful or wonderful. It means vindicating Rodney King’s rights to be free of excessive force without particularly caring whether or not King was a good person. For that matter, it means criticizing hallmarks of state power like the Dual Sovereignty Doctrine — even if that doctrine was what allowed King’s attackers to be convicted by the federal government after they were unjustly acquitted by the state. It means giving up the notion that deserve has anything to do with it.

Measured that way, a family mourning the life of a troubled man is no cause for outrage.