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The $1 trillion coronavirus relief package released by Senate Republicans yesterday includes billions of dollars for new weapons and defense projects that appear to have little to do with fighting the pandemic.

Part of the Senate Republicans’ relief package—collectively known as the Health, Economic Assistance, Liability, and Schools (HEALS) Act—is a $306 billion appropriations bill authored by Sen. Richard Shelby (R–Ala.). That legislation includes close to $30 billion in defense spending, with a good chunk of that money allocated to purchasing new aircraft, ships, and missiles.

“I believe we need to act with a sense of urgency.  The American people are fighters, but the accumulated strain of this pandemic is a serious burden on folks,” said Shelby, who chairs the Senate’s Appropriations Committee, in a press release. “With the additional resources this legislation provides, I believe we can give them greater confidence that we are getting our arms around this virus.”

Speaking of arms, Shelby’s bill includes $283 million for the Army through the end of 2022 “to prevent, prepare for, and respond to coronavirus, domestically or internationally”, on the condition that money be spent on acquiring AH–64 Apache attack helicopters made by Boeing.

The legislation also gives the Army another $375 million for upgrading its compliment of Stryker armored personnel carriers, which are made by General Dynamics. The Army reportedly awarded the company a $2.48 billion contract to build new, more mine-resistant Stryker vehicles in June. The text of the HEALS Act says that this funding will come in addition to any money that’s already been allocated.

The Air Force, meanwhile, will get $686 million to purchase more F-35As, a fighter plane made by Lockheed Martin. Its development has been plagued by cost overruns and delays. The bill will also put $720 million into funding buying more C-130J military transport aircraft, in addition to $650 million to pay for replacement wings for the Air Force’s A-10 aircraft.

The Navy will get its beak wet too, receiving $1 billion to purchase P–8A Poseidon aircraft, plus $1.4 billion for new medical ships, $260 million for a new Expeditionary Fast Transport vessel, $41 million for new Naval Strike Missiles and launchers (made by Raytheon), as a well as close to $50 million for submarine-detecting “sonobuoys.”

The Washington Post reports that many of these programs had their funding repurposed to help pay for President Donald Trump’s border wall. Republicans’ coronavirus legislation replaces that funding, and then some.

The Trump administration only slashed the budget for the Navy’s procure P–8A Poseidon aircraft by $180 million, but is now seeing its funding increased by $1 billion, reports the Post.

The Defense Department is hardly the only recipient of generous line items in the Senate GOP’s relief bill. The Trump administration reportedly requested that the legislation include $1.75 billion for a new FBI headquarters building (although the Wall Street Journal reports that Senate Majority Leader Mitch McConnell (R—Ky.) has come against that particular item.)

Whether all this defense pork will end up being passed by the Senate remains to be seen.

Given that the Senate just last week approved a $740 billion defense spending bill, and the federal government ran an $864 billion budget deficit last month, one could argue now is not the time to spend more money on the military.

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A SWAT team this month rendered a residence in Charlotte, North Carolina, unlivable after firing pepper spray and tear gas into the house while in pursuit of a suspect who was not there.

Trey McClendon, 19, was later arrested without incident.

The Charlotte-Mecklenburg Police Department (CMPD) sought McClendon on violent felony arrest warrants, according to a statement from Lt. Andy Harris. “SWAT was called to the scene to assist with his apprehension given McClendon’s violent history,” he said. “After several hours of attempting to communicate with Mr. McClendon were unsuccessful, officers attempted to enter the location to take McClendon into custody. Once officers gained access to the residence, they determined that McClendon was not present in the residence.”

But the London family, who own the home, tell a different story. They claim they knew McClendon wasn’t present at their house, and that they only gave officers permission to enter so that the officers could check for themselves without incident. “The keys were literally placed in their hands, and we don’t understand why they decided to bring tanks out,” Dominique Camm, the family’s lawyer, said at a press conference on July 17.

McClendon does not live at the residence.

“The violent criminal history is just obscene,” Rob Tufano of CMPD told the local NBC affiliate. “No officer is just going to walk in with a set of keys.” 

Instead, on July 11, the CMPD team deployed the tear gas and pepper spray, as well as what neighbors described as flash bang grenades, a tank, snipers, and K-9 units, according to The Charlotte Observer. The result: significant structural damage, including several holes in the ceiling.

Police permitted the London family to return to the residence at 3:30 a.m. on the morning of July 12 when they realized they’d need to find another place to live. 

“They destroyed our family home, a place where we stayed, a place where we once called home and had family gatherings—a place that we can no longer call a home,” Ebony London Gunter, whose mother lived at the house, said at the press conference. “This is the place that we come and gather, and so now it’s like our sense of security, our sense of family has now been taken and shaken. And they did that for nothing. Like, at the end of the day, they walked away empty handed and they left us to deal with this.”

CMPD says they offered “alternate living conditions” while the necessary repairs are made, but Camm countered that neither he nor the family had heard such an offer, according to The Observer. The city will reportedly pick up the bill.

Problems of police militarization certainly aren’t new. Just last month, the Supreme Court declined to hear the case of a family whose home in Greenwood Village, Colorado, was destroyed by SWAT agents after they deployed tear gas, flash bang grenades, 40 mm rounds, breaching rams, and two Bearcat armored vehicles while attempting to apprehend a shoplifter who had no relationship to the family in question. The home was totaled. The city gave the family $5,000.

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As school districts across the country grapple with the question of how to safely and effectively educate students amid a pandemic, teachers unions are making increasingly ridiculous demands, some of which have nothing to do with the health or safety of students, teachers, or administrators.

Take the group United Teachers Los Angeles (UTLA). That union represents more than 35,000 teachers in the nation’s second-largest school district. Earlier this month, UTLA published a paper calling for schools to remain closed until the district could ensure adequate supplies of protective gear for teachers and students. UTLA also demanded the reconfiguring of classrooms to allow for social distancing.

But that wasn’t it. UTLA also stated that the pandemic requires an immediate moratorium on new charter schools in Los Angeles. How does that protect student or teacher safety? It doesn’t, of course. If anything, the pandemic has revealed the necessity of additional educational options for parents and students.

UTLA didn’t stop there. It is also demanding things that the officials in charge of the Los Angeles Unified School District (LAUSD) don’t have the power to grant, such as the passage of Medicare-for-all, new state-level wealth taxes in California, and a federal bailout of the LAUSD—which is struggling to meet pension obligations for retired teachers and staff.*

Without passing judgment on the merits of any of these policies, it is obvious that reopening schools should not be conditioned on Congress totally overhauling the American health care system.

In a related story: schools in Los Angeles will not reopen anytime soon.

Sadly, these nonsense demands are also popping up outside of California. More than 10 teachers unions—including those in Boston, Chicago, Milwaukee, and St. Paul—have joined up with the Democratic Socialists of America to say that “schools cannot continue in this crisis without the resources our students need and deserve.”

What sort of demands are being made? For starters, those unions want a national ban on evictions, a moratorium on charter schools, an end to voucher programs, and the abolition of standardized testing. They also want a “massive infusion of federal money”—though it is unclear how much that actually is—paid for by, of course, “taxing billionaires and Wall Street.”

To be fair, the coalition is also pushing some good ideas, like getting police officers out of schools. But what does any of this have to do with safely educating children during a pandemic?

The decision to reopen schools or keep them closed is one that should be made at the local level—and it should of course take the health of teachers into consideration, also while balancing the interests of students, parents, and taxpayers. But all of that can only happen if the teachers unions are willing to bargain in good faith.

State and federal officials can help by expanding educational choice as rapidly as possible. If teachers unions are keeping public schools closed, parents should be provided with alternatives—or, as President Donald Trump has proposed, parents should get their school taxes refunded in full to use as they see fit.

“If Walmart employees strike, you can take your money elsewhere,” says Corey DeAngelis, director of school choice for the Reason Foundation, the nonprofit which publishes this website. “If teachers strike, you should be able to take your child’s education dollars elsewhere.”

It might come to that. On Tuesday, the American Federation of Teachers announced that it would support local unions that decide to go on strike over school reopening plans. Randi Weingarten, the union’s president, told Politico that those “safety strikes” should be a “last resort” for members.

That’s probably small comfort for parents and families who don’t know if their kids will be able to go back to school this year. If the teachers unions are determined to keep schools closed until they can be completely safe—or until Congress passes Medicare-for-all—then we’re all going to be waiting a while.

CORRECTION: This piece initially claimed the United Teachers Los Angeles was demanding Medicaid-for-all as a condition of reopening schools. They are seeking the passage of Medicare-for-all.

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Howard Weiss had sent eight e-mails (anonymously) to Senator Mitch McConnell in 2018 and 2019 via the Senator’s online form. Today’s decision by Judge Charles Breyer (N.D. Cal.) in United States v. Weiss, concluded that the e-mails didn’t fall within the “true threats” exception, as it has been defined within the Ninth Circuit:

A statement is objectively a true threat only if it “would be understood by people hearing or reading it in context as a serious expression of an intent to kill or injure” another person. In United States v. Bagdasarian, the Ninth Circuit reversed the defendant’s conviction for threatening to kill presidential candidate Barack Obama, holding that predictive and exhortatory statements, such as “Obama fk the niggar, he will have a 50 cal in the head soon,” were not true threats. Such statements conveyed “no explicit or implicit threat on the part of [the defendant] that he himself will kill or injure Obama.” The defendant’s further statement, “[S]hoot the nig,” was “an imperative intended to encourage others to take violent action, if not simply an expression of rage or frustration,” but it did not suggest that the defendant himself was going to shoot Obama.

Weiss’s comments were also steeped in “rage and frustration,” and they were indisputably violent. Nonetheless, read in context, the statements predicted that other people would hurt Senator McConnell, not that Weiss would. See, e.g., Opp’n Ex. A1 (stating, “You will die in thestreet by DC resistance motherfucker!!!!!” but not identifying himself as being part of the “DC resistance”); Opp’n Ex. A5 (stating, “The Kentucky Resistance is going to hang you by your pussy lips and punish you,” but not identifying himself as being part of “The Kentucky Resistance”); Opp’n Ex. A7 (stating, “The Kentucky Resistance says they are going to cut your throat from ear to ear and then your gook wife’s,” and using the word “they”); Opp’n Ex. A8 (stating, “… the Kentucky Resistance is going to totally execute you. They have stated youare a deadman! And soon. We are so glad to hear that they are finally going to take action. We cannot wait to know you are dead,” and using the word “they”).  It is true that Senator McConnell’s staff considered some of these messages threatening. See, e.g., Opp’n Ex. A1 (“Please see below threats that came in through our online message system”). But just as the statement, “Obama fk the niggar, he will have a 50 cal in the head soon” was not a true threat, see Bagdasarian, no reasonable jury could find that Weiss’s statements predicting that other people would harm Senator McConnell met the definition of true threats, see also New York ex rel. Spitzer v. Operation Rescue Nat’l, 273 F.3d 184, 196 (2d Cir. 2001) (“generally, a person who informs someone that he or she is in danger from a third party has not made a threat, even if the statement produces fear. This may be true even where a protestor tells the objects of protest that they are in danger and further indicates political support for the violent third parties.”)….

A statement is subjectively a true threat if the defendant “made the statements intending that they be taken as a threat.” “The speaker need not actually intend to carry out the threat.” Here, though the government asserted at the motion hearing that Weiss’s conduct meets the subjective test for a true threat, it provided no support for that assertion. In fact, the government asserts repeatedly in its briefing that Weiss had the intent to harass Senator McConnell, but never mentions an intent to threaten. See, e.g., Opp’n at 1 (“Defendant Howard Weiss is charged with the harassing use of a telecommunications device … with intent to harass U.S. Senator Mitch McConnell.”); id. (“From October 2018 through October 2019, defendant used his cell phone to send a total of eight emails to Senator McConnell … with the intent to harass Senator McConnell”); Opp’n at 20 (“the references to Senator McConnell are simply direct and circumstantial evidence of defendant’s intent to harass a specific person”), id. at 21 (arguing that the relevant intent was the intent to harass, not the intent to convey a political opinion).

The only evidence of Weiss’s intent that the Court is aware of comes from Weiss’s interview with law enforcement, in which he admitted to having an intent to harass the Senator, rather than to threaten him. He told law enforcement that he decided to harass Senator McConnell because the senator made political decisions with which he disagreed. He admitted that he used racial slurs in furtherance of his intent to harass the Senator, saying, “that’s just terrible harassment, that’s just anger and bullshit.”

Weiss’s words were violent and repugnant, as even he seems to have eventually understood. But because he did not convey that he himself would harm Senator McConnell, and the government has not identified any basis for concluding that Weiss intended to threaten, rather than harass, the Senator, the “true threat” exception does not apply.

Here are the e-mails, which were quoted in part above:

turtle, If you push this for Friday, the resistance is coming to DC to slash your throat. You will die in thestreet by DC resistance motherfucker!!!!! You will not live to regret it!!!!!! …

turtle cum drinker, The yelling resistance should have put a bullet in your head and then kill all the people you love! …

[Subject:] Your intelligence is zero … You motherfucking scumbag crook turtle[.] Go fuck yourself. I have been furloughed and you heartless bastard could give a shit. You fucking criminal. Someone needs to kill you! You are going to lose next election and we will get rid of your satanic evil ass you loser fuckhead

[Subject:] You are a criminal Russian asset … Turtle, You motherfucking chinc lover, russian paid scumbag. With your fucking chinc father-in-law bank rolling you. You fucking animal better get ready for the biggest loss of your shitty heartless evil toxic life. We know you will believe this is just unimportant bullshit, however you better not….

[Subject:] Losers will die turtle, … Go fuck yourself you fucking criminal motherfucker. In 2020, You are fucking a closed case. You are a fucking dog who will be put down!!! The Kentucky Resistance is going to hang you by your pussy lips and punish you for what you think you got away this. Your consequential decision will afford you the most torture you will ever endure. scalia was the biggest asshole in the judicial system ever.

[Subject:] The 2020 election … You racist fucking criminal chinc loving motherfucker. You are going down in2020 and then you will suffer the consequences and they will burn your life down!

[Subject:] We need your chink whore to go back “To where the fucking gook came from. You motherfucking racist scum. The Kentucky Resistance says they are going to cut your throat from ear to ear and then your gook wife’s.” …

[Subject:] The gravity of your nonexistence … Whether you believe it or not, after watching Frontline the Kentucky Resistance is going to totally execute you. They have stated youare a deadman! And soon. We are so glad to hear that they are finally going to take action. We cannot wait to know you are dead.

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In today’s decision in United States v. Weiss, Judge Charles Breyer (N.D. Cal.) dismissed a prosecution for sending harassing e-mails (in violation of 47 U.S.C. § 223(a)(1)(C)) to Senator Mitch McConnell’s office. The judge concluded that the e-mails weren’t punishable threats of violence (more on that in a later post); but the government’s chief argument was that they were constitutionally unprotected because they were “speech integral to criminal conduct”—the criminal conduct being the sending of harassing e-mails, in violation of 47 U.S.C. § 223(a)(1)(C). Judge Weiss rejected that argument on the government’s part, in my view correctly so:

As to “speech integral to criminal conduct,” the government contends that “any speech of [Weiss’s] that is restricted by § 223(a)(1)(C) is integral to his criminal conduct in violating § 223(a)(1)(C).” That reasoning is fatally circular.

“Speech integral to criminal conduct” does not mean that Congress can make a law criminalizing otherwise-protected speech, and then, because a defendant’s speech violates the law, deem the speech to be “speech integral to criminal conduct.” “[I]f the government criminalized any type of speech, then anyone engaging in that speech could be punished because the speech would automatically be integral to committing the offense. That interpretation would clearly be inconsistent with the First Amendment.” United States v. Matusiewicz (D. Del. 2015).

As Eugene Volokh explained, the exception “can’t justify treating speech as ‘integral to illegal conduct’ simply because the speech is illegal under the law that is being challenged. That should be obvious, since the whole point of modern First Amendment doctrine is to protect speech against many laws that make such speech illegal.” Eugene Volokh, The ‘Speech Integral to Criminal Conduct’ Exception, 101 Cornell L. Rev. 981 (2016) (hereinafter Volokh). Moreover, “[i]t is not enough that the speech itself be labeled illegal conduct, e.g., ‘contempt of court,’ ‘breach of the peace,’ ‘sedition,’ or ‘use of illegally gathered information.’ Rather, it must help cause or threaten other illegal conduct which may make restricting the speech a justifiable means of preventing that other conduct.” Id. (emphasis in original).

“Speech incident to criminal conduct” applies to speech that “is a mechanism or instrumentality in the commission of a separate unlawful act,” apart from the speech itself. People v. Relerford (Ill. 2017). The exception originates from the case of Giboney v. Empire Storage & Ice Co. (1949), in which, to pressure nonunion ice-sellers, a union picketed an ice company, demanding that it agree to stop supplying ice to the nonunion ice-sellers. What the union was demanding of the ice company was illegal under Missouri law, which prohibited any agreement in restraint of trade in the sale of any product. The union’s picketing therefore was intended “to effectuate the purposes of an unlawful combination, and their sole, unlawful immediate objective was to induce [the ice company] to violate the Missouri law by acquiescing ….” The Court explained that while “the agreements and course of conduct here were as in most instances brought about through speaking or writing it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language ….” See also Volokh (“Many lower court decisions have cited Giboney in cases factually much like Giboney itself:  cases where the speaker is soliciting the commission of some other crime.”).

The existence of a separate unlawful act is key. The Minnesota Supreme Court recently explained that “statutes criminalizing the use of the Internet or an electronic device to engage in communications with a child that relate to or describe sexual conduct and the intentional solicitation of prostitution fall within the” exception, because such speech is “directly linked to and designed to facilitate the commission of a crime.” In re Welfare of A.J.B. (Minn. 2019). “On the other hand,” that court held that “speech advising, encouraging, or assisting another to commit suicide was not speech integral to criminal conduct because the act advocated for—suicide—is not illegal.”

In United States v. Osinger, which the government relies on, the Ninth Circuit held that the defendant’s Facebook impersonation of the victim and his posting of sexually explicit photographs of her was integral to his “course of conduct” of stalking her, which began with in- person stalking even prior to his online speech. Had Osinger not done anything but engage in free speech, the “speech integral to criminal conduct” exception should not have applied, as Judge Watford wrote in a compelling concurring opinion. See id. (Watford, J., concurring). Judge Watford agreed with the majority’s holding in that case because “whatever difficulties may arise from application of the exception in other contexts, it surely applies when the defendant commits an offense by engaging in both speech and non-speech conduct, and the sole objective of the speech is to facilitate the defendant’s criminal behavior.” But see Volokh at 1036–42 (criticizing Osinger and noting that “[s]peech that is intended to annoy, offend, or distress does not help cause or threaten other crimes, the way solicitation or aiding or abetting does.”)….

The government also relies on United States v. Sandhu, in which the Ninth Circuit [in a nonprecedential decision] held that any speech involved in the commission of 47 U.S.C. § 223(a)(1)(D)—the statute making it a crime to cause another person’s phone to ring repeatedly—was “speech integral to criminal conduct,” The government asserts that “[t]he same analysis applies here.” Opp’n at 19. But section 223(a)(1)(D) targets conduct separate and apart from any speech—speech was irrelevant to the prohibited conduct of “caus[ing] the telephone of another repeatedly or continuously to ring, with the intent to harass ….” See 47 U.S.C. § 223(a)(1)(D); see also Osinger (Watford, J., concurring) (distinguishing the criminalization of pure speech from cases involving “non-communicative aspects of speech, like repeated unwanted telephone calls that are harassing due to their sheer number and frequency.”). The First Amendment does not prevent Congress from criminalizing the causing of someone’s phone to ring repeatedly; it does prevent Congress from criminalizing political speech.

{Imagine, for example, a law criminalizing the printing of a flyer with the intent to undermine the President. The government’s argument here would mean that what is really criminalized is the printing of the flyer with bad intent, and that whatever political speech is on the flyer is integral to the criminal conduct of printing a flyer with unlawful intent. That would be absurd. As Weiss asserts: “The First Amendment limits Congress; Congress does not limit the First Amendment.”}

The government also cites to United States v. Alvarez as recognizing the “speech integral to criminal conduct” exception. In fact, while the Supreme Court in Alvarez recognized the existence of that exception, it did not employ that exception to resolve the case. Alvarez had been charged with and convicted for violating the Stolen Valor Act, because he lied about receiving the Congressional Medal of Honor. The Ninth Circuit reversed Alvarez’s conviction, and the Supreme Court affirmed, holding that the Stolen Valor Act was a content-based restriction on free speech that violated the First Amendment.

Applying the government’s reasoning here would have led the Court to uphold Alvarez’s conviction: his speech violated the Stolen Valor Act, so it was speech integral to violating the Stolen Valor Act. Instead, the Court found that fact patterns involving “speech integral to criminal conduct” were “inapplicable[.]” Similarly, while the government argues that “[United States v. Popa (D.C. Cir 1999)] has no bearing here because it did not address the speech integral to criminal conduct exception[,]”the better interpretation of Popa is that it did not employ such an expansive interpretation of the exception because the law does not support it. Popa committed no criminal conduct other than his harassing phone calls. Why would the D.C. Circuit have bothered to undertake a lengthy analysis of intermediate scrutiny as applied to Popa’s speech when it “could merely hold that the speech has been criminalized, apply the exception, and be done with it”?

As in Popa, this case involves no criminal act by Weiss apart from his violation of the statute by using his telephone to harass a public official with his speech (some of which was political). The government conceded as much at the hearing. When the Court asked the government what criminal conduct Weiss’s speech facilitated, the government identified that conduct as the harassing and threatening use of a device. Weiss was not also soliciting a company to enter into an agreement in restraint of trade, he was not also engaging in a course of conduct of stalking, and he was not also conspiring to defraud the United States. Because Weiss’s speech did not help cause or threaten other illegal conduct, the “speech incident to criminal conduct” exception does not apply.

{Moreover, there is no categorical exception to the First Amendment for speech made with the intent to harass someone. See Rodriguez v. Maricopa Cnty. Cmty. Coll. Dist. (9th Cir. 2010) (holding that the “right to be free of purposeful workplace harassment under the Equal Protection Clause” of the Fourteenth Amendment did “not retract[] the freedoms enshrined in the First.”).}

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