Conviction for Surreptitiously Recording Conversation with Police Chief in His Office Reversed;

From People v. Davies, decided on Feb. 8 by Justices Herbert Levy, Kathleen Meehan, and Charles Poochigian but revised slightly Wednesday:

Appellant James Clinton Davies surreptitiously recorded a conversation he had with his local police chief while they were in the chief’s office. A police lieutenant was also present, and appellant discussed his own uncharged criminal matter with the chief. Unbeknownst to the officers, appellant recorded the conversation as a video on his cellular phone. A short time later, appellant posted the video on Facebook.

A jury convicted appellant of recording a “confidential communication” in violation of Penal Code section 632, subdivision (a). Following this felony conviction, appellant was placed on formal probation for three years….

We agree with appellant that multiple prejudicial instructional errors occurred, which require reversal of his judgment. The court did not make it clear that, in order to establish guilt, the prosecution was required to prove that appellant intended to record a confidential communication. The court also erroneously instructed that a mistake of fact was not a legal defense for intent. Together, these errors strongly suggested to the jury that appellant could be convicted even if he lacked criminal intent and/or he reasonably believed the conversation was not confidential….

Appellant spoke with the chief while inside the chief’s office. The lieutenant was present during the conversation. The door to the chief’s office remained open. At trial, the lieutenant testified that the chief had asked him to stay in the office with them because appellant “has had some issues in the past with the police department.” …

At trial, the chief and the lieutenant testified that appellant appeared angry and upset during this brief meeting. Appellant was yelling. According to the lieutenant, appellant appeared possibly intoxicated….

The California Invasion of Privacy Act, section 630 et seq., was enacted in 1967 for the purpose of protecting the right of privacy by, among other things, “requiring that all [persons] consent to a recording of their conversation.” Section 632 makes it a crime for a person to use an “electronic amplifying or recording device to eavesdrop upon or record” a “confidential communication.” To constitute a crime, the defendant must eavesdrop or record “intentionally and without the consent of all parties” to the confidential communication. {This may occur “among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio.”}

A key issue in this matter is the definition of what constitutes a “confidential communication.” Section 632 defines this as “any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive, or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.” ….

[T]he California Supreme Court [has] endorsed the following test for determining confidentiality of a communication: “‘[U]nder section 632 “confidentiality” appears to require nothing more than the existence of a reasonable expectation by one of the parties that no one is “listening in” or overhearing the conversation.'” The high court stated, “a conversation is confidential under section 632 if a party to that conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded.” …

[But the jury instruction given in this prosecution] was defective in two ways: first, it failed to address adequately the intent or knowledge required by appellant to find him criminally liable under section 632, subdivision (a). Second, it incorrectly stated that a mistake of fact was not a legal defense for intent….

[A]ppellant’s jurors were told that appellant was guilty if he “intentionally used a recording device to record a communication.” The jurors were instructed that appellant was guilty if, at the time of the recording, one of the parties to the communication desired it to be confidential; any party to the communication knew or reasonably should have known that the conversation was confidential; and all parties to the conversation did not consent to the recording. The instruction given in this matter erroneously suggested that appellant could be convicted even if he lacked an intent to record a confidential communication…. Instead, the instruction suggested that appellant could be convicted even if he reasonably believed the conversation was not confidential.

Instructional error also occurred because the trial court informed the jury that a mistake of fact was “not a legal defense for intent.” This was an incorrect statement of law…. A defendant’s actual and reasonable mistake of fact could show that he or she did not intentionally or knowingly record (or eavesdrop upon) a confidential communication….

This trial record contains some evidence from which rational jurors could conclude that appellant did not have the intent to record a confidential communication, or he did not reasonably believe he was recording a confidential communication. Likewise, it is possible that rational jurors could determine that appellant had held a reasonable mistaken belief that he could record this conversation.

Appellant went to the police department on the afternoon in question and he asked to speak with the chief. The chief agreed to speak with him, and appellant was escorted through a locked door. Appellant was not searched. The recorded conversation occurred in the chief’s office. The door to the chief’s office was left open and the lieutenant was present. Appellant discussed an alleged criminal matter that took place between appellant and D.R. Appellant expressed his frustration that the police were not arresting D.R.

Appellant did not testify at trial. However, when interviewed by the detective after this incident, appellant was asked if he had realized the chief’s office was a “controlled area,” and appellant said that he did not. Appellant was asked if he thought it would have been better to inform the chief that he was recording. Appellant responded that “you guys can record me at any time.” The detective informed appellant that he (appellant) must have known that the area near the chief’s office was not public because of the “key encoded locked door.” Appellant disagreed because the area seemed “wide open.” Appellant said that he “never considered it.” …

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City Officials Have No Free Speech Rights to Use Public Funds to Support/Oppose Ballot Measures or Candidates

From City of Maryland Heights v. State, decided Tuesday by the Missouri Supreme Court, in an opinion by Chief Justice Paul Wilson:

Officials of political subdivisions in St. Louis County brought suit seeking a declaratory judgment that section 115.646, which prohibits officials from directly using public funds to advocate, support, or oppose a ballot measure or candidate for public office, violates the First and Fourteenth Amendments of the United States Constitution…. Because section 115.646 regulates the use of public funds, not the officials’ speech, it does not implicate the free speech clause of the First Amendment….

When Plaintiffs initiated their lawsuit, section 115.646 provided:

No contribution or expenditure of public funds shall be made directly by any officer, employee or agent of any political subdivision to advocate, support, or oppose any ballot measure or candidate for public office. This section shall not be construed to prohibit any public official of a political subdivision from making public appearances or from issuing press releases concerning any such ballot measure.

{The General Assembly [broadened] section 115.646 after Plaintiffs initiated their lawsuit.}

Section 115.646 does not purport to regulate the speech of officials when they do not use public funds. Section 115.646 also does not in any way prohibit the use of private or personal funds to subsidize officials’ speech. In other words, section 115.646 does not limit or prohibit officials’ speech; it merely prohibits them from using public funds to facilitate or augment that speech. See Sweetman v. State Elections Enf’t Comm’n (Conn. 1999) (rejecting the argument that a similar statute chilled speech because “[t]he statute does not prohibit public officials from speaking; it merely prohibits them from using the public fisc to purchase a soapbox”).

As the Supreme Court has recognized, “A refusal to fund protected activity, without more, cannot be equated with the imposition of a ‘penalty’ on that activity.” Rust v. Sullivan (1991). As a result, “[a] legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right.”

{Plaintiffs do not argue section 115.646 violates the First Amendment rights of political subdivisions by regulating a political subdivision’s use of public funds to convey its message through its officials, employees, or agents. Such an argument would lack merit because government speech lacks First Amendment protection. Pleasant Grove City v. Summum (2009).}

The court also concluded the statute wasn’t unconstitutionally vague:

First, the circuit court declared the term “ballot measure” to be vague because the circuit court believed it was unclear when a proposal becomes a “ballot measure.” … [But] section 130.011(2) provides a definition of “ballot measure” that, even though not strictly applicable to chapter 115, nevertheless comports with the common understanding of the phrase and refutes that it cannot be understood by a reasonable person. See § 130.011 (defining “ballot measures” as “any proposal submitted or intended to be submitted to qualified voters for their approval or rejection”). Whether a proposal is intended to be submitted to the voters will be clear in most circumstances, especially when the process for getting it on the ballot has begun. But even if there are some circumstances in which the line between an idea and a proposal intended to be submitted to qualified voters is not clear, “speculation about possible vagueness in hypothetical situations not before the Court will not support a facial attack on a statute when it is surely valid in the vast majority of its intended applications.” Hill v. Colorado (2000).

The circuit court … declared “public funds,” and whether those funds were spent “directly” by the official, to be vague. In reaching this conclusion, the circuit court raised a variety of hypothetical situations that might pose a close call under the statute. But, as previously explained, speculation about hypothetical situations is insufficient to support a facial attack when language understandable to an ordinary person, such as “public funds” and “directly,” conveys what section 115.646 prohibits in the vast majority of intended applications. The terms “public funds” and “directly” are of common understanding and provide a person of ordinary intelligence sufficient notice of the prohibited conduct.

Finally, the circuit court erred in declaring the words “advocate, support, or oppose” to be unconstitutionally vague. The words “advocate, support, or oppose” also are commonly understood by a person of ordinary intelligence. Each of these terms refers to result-oriented language, rather than mere discussion of issues. While there may be uncertainty in cases near the margin, complete specificity is not required.

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No Sealing of Letters of Support in Sentencing for Police Brutality

From U.S. v. George, decided Tuesday by Judge Kenneth Bell (W.D.N.C.); for more on the underlying case, see this Fourth Circuit decision:

Whether arising under the First Amendment or the common law, the public’s right to access judicial proceedings “may be abrogated only in unusual circumstances.” Under the First Amendment standard, a “denial of access” to publicly filed documents “must be necessitated by a compelling … interest and narrowly tailored to serve that interest.” This high standard is required because public access “serves to promote trustworthiness of the judicial process, to curb judicial abuses, and to provide the public with a more complete understanding of the judicial system, including a better perception of fairness.” Judges are not accountable to the public like elected officials, thus “[a]ny step that withdraws an element of the judicial process from public view makes the ensuing decision look more like a fiat and requires rigorous justification.” …

Defendant asks to file his Letters of Support under seal because this “case has received high public/media attention … [and] to preserve [his] privacy and safety.” However, the Court finds that sealing the Letters of Support is inconsistent with the First Amendment and the common law right to public access. While the Defendant states that his “privacy and safety” are at risk, he does so only in a conclusory manner and does not specifically explain how public access to the Letters of Support would cause him any harm. Hence, he has failed to provide the specific information required by Local Rule 49.1.1 to aid the Court in determining whether sealing is consistent with the First Amendment or common law.

Nor has he presented to the Court any authority for his request. Indeed, the mere presence of media scrutiny without more particularized proof of a compelling privacy interest is insufficient to support the sealing of court filings over the requirements of the First Amendment. Thus, the Court will deny the Motion and only consider Letters of Support contained in the public record.

The Motion had read, in its entirety:

Robert Michael George by and through his counsel of record, Myra Cause, and pursuant to Local Rule 49.1.1, respectfully requests that this Court to allow him to file his Letters of Support of Resentencing under seal based upon the sensitive nature of the information contained therein, including sensitive information supporting the request within the motion. This case has received high public/media attention and we respectfully ask the Letters of Support of Resentencing to be filed under seal to preserve Mr. George’s privacy and safety.

See also another such decision, in the NIXVM sex cult case.

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Government Proclamations Are Government Speech, not Subject to Viewpoint Neutrality Rules

From Judge Timothy Corrigan’s decision in Bloomberg v. Blocker, decided (clearly correctly, I think) Thursday:

Bloomberg is a citizen of St. Johns County, Florida, where Blocker is Chair of the St. Johns County Board of County Commissioners. On March 8, 2021, Bloomberg emailed St. Johns County … about a proclamation celebrating “LGTBQ [sic] civil rights progress and the contributions of LGBTQ individuals to the St. Johns County community….” … Michael Ryan, the St. Johns County Assistant Director of Public Affairs in the Office of the County Administrator, called Bloomberg … to report that “they would not consider proclamations that were ‘controversial’ or ‘too far left or too far right,’ and therefore that the proclamation would not come before the Board for consideration.” …

[A] government entity may “speak for itself,” “say what it wishes,” and “select the views that it wants to express.” … Bloomberg’s First Amendment claims hinge on whether St. Johns County’s proclamations are government speech or private speech. Here, the type of speech is a proclamation that, though written by an individual person or group, is adopted and communicated by elected officials at County Commission meetings. Historically, past proclamations have been on topics such as 4-H week, domestic violence awareness month, arts and humanities month, Whitney Labs, and Columbus Day, and they include a place for an elected official to sign at the bottom. The proclamation at issue includes the following language:

Now, therefore, I, under the authority vested in me as [ ] of St. John’s [sic] County, Florida, do hereby proclaim St. John’s [sic] County acknowledgment of pride history and the 52nd anniversary of Stonewall. I call upon all citizens to celebrate the progress that we have made, the contributions of the LGBTQIA+ community to our city, to stand as an ally with our friends and neighbors in the face of prejudice wherever it exists, and to embrace the great diversity within our community.

Because the proclamation is written using “I,” with the Commissioner or elected body speaking in the first person, and with a space for the signature of an elected official at the bottom, the Commission endorses the content of the proclamation. (See Doc. 18 at 6, 13 (“A proclamation is an official document endorsed by the entire St. Johns County Board of County Commissioners.”) (quoting the St. Johns County Government website)). Furthermore, by choosing whether to place certain proclamations on the agenda, the government maintains control over the message conveyed, even if the message was originally crafted by a private citizen….

Bloomberg attempts to distinguish “the decision as to whether the Board would or would not issue a proclamation” from “the content-based restriction to refuse to even put the LGBTQ Proclamation on the agenda….” Bloomberg claims that the latter is “an unlawful restraint” and that “[p]utting the LGBTQ Proclamation up for a vote is no more ‘government speech’ than a ballot initiative being placed on a ballot is ‘government speech’ or an ‘endorsement’ of that initiative.” However, the Board’s (or the Chair’s) decision whether to place an item on the agenda is not speech of an individual to which First Amendment safeguards apply….

I expect the Supreme Court’s decision this Term in Shurtleff v. City of Boston will be consistent with this, though, of course, one can’t know for sure until the opinion is handed down; I talked about that case briefly on a Federalist Society Teleforum last month:

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Today in Supreme Court History: February 19, 1942

2/19/1942: President Roosevelt issues Executive Order 9066. The Supreme Court would consider the constitutionality of this Executive Order in Korematsu v. U.S. (1944).

 

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It’s the End of the Neoliberal Era, and We Still Don’t Know What Neoliberalism Is


neoliberalism

It wouldn’t be entirely accurate to say that no one knows what the hell neoliberal means. Plenty of people are quite sure they know what it means. It’s just that they can’t agree on a common definition.

Consider two articles published in two different left-wing magazines. The first, written by Megan Erickson for Jacobin, is a critique of “unschooling,” an informal, self-directed, countercultural sort of homeschooling that dispenses with tests, lectures, and predetermined curricula. The movement is beloved by many anti-corporate leftists, but Erickson warns them that its “values of freedom, autonomy, and choice are in perfect accordance with market-based ‘reforms,’ and with the neoliberal vision of society on which they’re based.”

The other story, published by Dave Zirin in The Nation, denounces the Brazilian authorities for pouring public money into stadiums for the World Cup and the Olympics. Such subsidies are “neoliberal plunder,” Zirin declares, because “neoliberalism, at its core, is about transferring wealth out of the public social safety net and into the hands of private capital.”

So unschooling is neoliberal even when it is explicitly anti-corporate, because it resembles an idealized free market. And stadium subsidies are neoliberal because they rain wealth on corporations, even if they override market principles in the process. What a capacious word this is.

Now, politics is filled with words that mean different things in different mouths. The world has never come to a complete consensus on the meaning of capitalism, socialism, conservatism, or just plain liberalism, without the neo attached. But neoliberalism is an especially tangled case. It has two entirely separate etymologies, one of which essentially reversed the term’s meaning midway through its evolution. On top of that, the word became a popular epithet at a time when hardly any people were using it to describe themselves—that is, at a time when there wasn’t much of a constituency for keeping a stable definition in place. It’s a bit easier to find self-proclaimed neoliberals today, but they arrived so late that they may have muddied the waters even more.

For all that, there arguably is a coherent way to use the term. But first we need to cut through that historical tangle.

* * * * *

Most histories of the word neoliberal start in Germany between the world wars, with a group of intellectuals who today are usually called the ordoliberals. At the time they often called themselves neoliberals, because they were trying to develop a new alternative to the old laissez faire liberalism of the 19th century. At one famous gathering—the Walter Lippmann Colloquium, held in Paris in 1938—they mixed with, and sometimes clashed with, several prominent laissez faire liberals of the day, including Ludwig von Mises and F.A. Hayek.

This wasn’t the first time “neo” and “liberal” (or their counterparts in other languages) had been put together. Notably, Phil Magness of the American Institute for Economic Research (AIER) has pointed to the pejorative use of neoliberalismus and neuliberal among certain socialist and proto-fascist German-language writers in the 1920s. But the ordoliberals are especially significant when you’re tracing the term’s meaning, because they explicitly rejected the views derided today as “market fundamentalism.” (One of them, Alexander Rüstow, once declared that Mises and Hayek “should be put into a museum, conserved in formaldehyde.”) A few decades later, by contrast, many writers were using neoliberalism and market fundamentalism interchangeably. That shift is traced in “Neoliberalism: From New Liberal Philosophy to Anti-Liberal Slogan,” a 2009 paper by the political scientists Taylor C. Boas and Jordan Gans-Morse.

“The German neoliberals accepted the classical liberal notion that competition among free individuals drives economic prosperity,” Boas and Gans-Morse explain. But they “sought to divorce liberalism—the freedom of individuals to compete in the marketplace—from laissez faire—freedom from state intervention.” The ordoliberals were a strong influence on West Germany’s postwar “social market economy,” in which officials abolished food rationing, swept away price controls, lowered taxes and trade barriers, and contracted the money supply, but also embraced interventions intended to foster competition and ensure a safety net.

When those German ideas were exported to Latin America in the 1960s, they were known in Spanish as neoliberalismo. But the word’s connotations started to change, Boas and Gans-Morse argue, after some University of Chicago–trained economists convinced the Chilean dictator Augusto Pinochet to adopt a number of market-oriented policies in the 1970s: privatizing state enterprises, lowering tariffs, eliminating various economic controls. Pinochet was not liberal at all when it came to human rights and civil liberties—his regime was notorious for censoring, imprisoning, torturing, and killing its enemies. But under the new meaning of neoliberal that began to take hold, that didn’t matter; this was a liberalism where non-economic liberties were expendable. The important thing was Pinochet’s alleged market fundamentalism.

As it happens, Pinochet was not any kind of market purist. He fixed the price of his country’s currency to the U.S. dollar and, when that overvaluation helped bring on a recession, reacted by raising domestic taxes, doubling tariffs, and bailing out the financial sector; that bailout included the temporary nationalization of several banks. And even at the peak of the Chicago crew’s influence, his government put a lot of shackles on labor-management negotiations. But we are speaking here of how he was perceived, not how he consistently governed. This post-Pinochet spin on neoliberal, Boas and Gans-Morse conclude, “diffused directly into the English-language study of political economy.”

Even as those writers were turning the term inside-out, an American pundit started using the word in yet another way, with an entirely different set of reference points. In the 1970s and ’80s, The Washington Monthly and its founder, Charlie Peters, got a reputation for challenging some of the shibboleths of the old New Deal order. Peters himself admired the New Deal, but he was more willing than the standard Democrat to criticize regulatory agencies and organized labor. Seeing similar heterodox attitudes among some of the younger journalists and politicians around him, he recoined the word neoliberal to describe their emerging belief system. This time, the liberalism being updated wasn’t the laissez faire liberalism of Adam Smith; it was the welfare-state liberalism of Franklin Roosevelt and Lyndon Johnson.

And so, in a 1982 op-ed for The Washington Post, Peters laid out “A Neoliberal’s Manifesto.” Here he presented the label as a riff on the word neoconservative: “If neo-conservatives are liberals who took a critical look at liberalism and decided to become conservatives,” he wrote, “we are liberals who took the same look and decided to retain our goals but to abandon some of our prejudices.” Specifically, they “no longer automatically favor unions and big government or oppose the military and big business.” They celebrate the entrepreneur, want to means-test entitlement programs, oppose “the kind of economic regulation that discourages healthy competition,” and are “against a fat, sloppy, and smug bureaucracy” (but not “against government”). In Peters’ telling, they also backed a military draft, no-fault divorce, and a return of the New Deal–era Works Progress Administration. (Like many wishcasting pundits, Peters may have mixed some personal hobbyhorses into his trendspotting.) Their ideas turned up not just in the pages of magazines like The Washington Monthly and The New Republic but on the lips of certain Democratic officials: Sens. Gary Hart of Colorado, Bill Bradley of New Jersey, Paul Tsongas of ​​Massachusetts.

This use of the word caught on in the American press, and many young politicians were tagged with it over the next few years. Randall Rothenberg’s 1984 book The Neoliberals roped in two future Democratic presidential nominees, Michael Dukakis and Al Gore. (It also listed Pat Choate, who went on to be Ross Perot’s 1996 running mate and a harsh critic of globalization.) At the time, few of the pundits slinging the word around in the U.S. seemed aware of its parallel history in Europe and Latin America. But these neoliberals were skeptical about regulation at the same time that those other neoliberals were taking on parts of the regulatory state, so there was just enough coincidental convergence to confuse everyone. If you’re an American pundit of a certain age, it’s the Charlie Peters crowd that comes to mind when you hear someone say “neoliberal.” And if you’re a leftist academic prone to complaining about neoliberalism, there’s a good chance you think the Peters crew was market-friendly enough to qualify for the label, even if they weren’t exactly market fundamentalists. (Many of them were big on industrial policy, which is the sort of thing conservatives tout today if they want to demonstrate that they’re going “beyond neoliberalism.”)

Those leftist academics started using neoliberal as an insult more often in the 1990s, and their fondness for the word really took off in the early 21st century. The two most influential figures here were the Marxist geographer David Harvey, whose Brief History of Neoliberalism was published in 2005, and the radical philosopher and historian Michel Foucault, whose 1979 lectures on neoliberalism were published posthumously in 2004 as The Birth of Biopolitics. Confusing matters still more, Harvey and Foucault came to the topic from rather different directions.

For Harvey, the heart of neoliberalism was a reconfiguration of state power, not the anti-statist ideas of people like Hayek, even if the latter helped create “a climate of opinion in support of neoliberalism as the exclusive guarantor of freedom.” In practice, he wrote, neoliberalism is marked by partnerships where “the state assumes much of the risk while the private sector takes most of the profits,” and neoliberal states will often enhance policing, surveillance, and incarceration “to protect corporate interests and, if necessary, to repress dissent.” (He adds: “None of this seems consistent with neoliberal theory.”) Foucault, on the other hand, was grappling primarily with neoliberal ideas, both the older German kind and the later Chicago kind. While this partly reflected the fact that he was speaking more than two decades earlier, he also just didn’t share Harvey’s hostility to his subject—though not everyone citing him noticed that.

This tangled history gives people a lot of ways to talk past each other, so any scholars, journalists, or activists who want to use the word neoliberal carefully should take the time to define exactly what they mean by it. But not everyone is interested in using it carefully. Many have taken to treating it as a broad smear-word for everything they dislike about globalization, markets, or modernity—as Boas and Gans-Morse put it, “a vague term that can mean virtually anything as long as it refers to normatively negative phenomena associated with free markets.” When Boas and Gans-Morse examined 148 papers that used the word, they found only four that deployed it in a consistently positive manner.

While a few free market economists, such as Scott Sumner, were willing to call themselves neoliberals, this wasn’t very common at the time. In the last decade, though, some pundits, activists, and academics have tried to reclaim the phrase. Some of them are libertarians, but most are either Democrats who have made their peace with market-driven trade and housing policies or ex-libertarians who have made their peace with government intervention. (Reason‘s Christian Britschgi once cracked that the neoliberal coalition has “a commitment to freedom that’s one NBER working paper deep.”) Unlike the self-proclaimed neoliberals of the 1980s, they are likely to have read Hayek. How reverently they’ll quote him varies widely.

With all these competing uses floating around, the word often seems to lose all coherence. The P2P Foundation, for example, published a post in 2017 that said several cities in Europe have been letting civic groups use municipally owned space “up until the time when real estate companies start re-developing these urban areas.” Such temporary measures, the author argued, did not “directly challenge neoliberal real estate speculation.” But in The Hague, an artists’ and designers’ collective tried something more radical: “They started paying rent for the free space, and used the accumulated capital as down payment for rebuying the space from the city.” In this way, he wrote, they moved “from tenancy to collective ownership.”

So apparently, you can challenge neoliberalism by buying real estate. From the city. A process otherwise known as “privatization.” Which, word has it, is extremely neoliberal.

* * * * *

Is there a way to use this word that reflects these contradictory meanings without pretending they’re all the same thing? There might be. Neoliberal may not describe a coherent force or worldview, but it’s not a bad way to describe a distinct historical era. We need some label for the period, at any rate—and for all its flaws, this one has the advantage of already existing.

The epoch in question began in the 1970s, when a series of economic crises hit: a global oil shock, a fiscal emergency in New York City, a simultaneous surge in unemployment and inflation. That last challenge, called stagflation, wasn’t just bad news for people facing higher prices and joblessness at the same time; it was bad news for economic officials, most of whom had long believed that increases in inflation and unemployment were mutually exclusive. The door was open for alternative ideas and institutions.

And so—starting in the ’70s, then going into overdrive after the fall of communism—those new ideas and institutions took hold. Or rather, some of them did. That’s the thing about historical periods: The people in them don’t move in lockstep.

For a comparison, think of the Progressive Era. In the traditional triumphalist take on the first two decades of the 20th century, popular protest pushed reformist politicians into office, where they broke up corporate monopolies and ended some of the business world’s worst abuses. A revisionist argument, born in the 1960s New Left and popular among libertarians, takes a darker view: It sees the Progressive Era as an age of technocratic consolidation, marked more by state-corporate cooperation than by reductions in corporate power, with reforms that often did more to stabilize cartels than to dismantle them.

The revisionist argument is true. But so is this: All sorts of progressives were running around in the Progressive Era, with all sorts of different goals. Some of them really were opposed to concentrated power, be it public or private. Some were all for greater concentration of power, as long as they felt enlightened experts were in charge. Some were suspicious of corporate power in theory but fell in behind reforms that ultimately did more to protect that power than to roll it back. And all of them were active at once.

So it was with the Neoliberal Era. Almost every nation has adopted at least some degree of market reform in the last half-century, and that economic liberalization was often joined by advances in free expression, sexual liberty, women’s rights, and other forms of personal autonomy. When grumpy conservatives claim that libertarians run America, that’s the combination of trends they usually have in mind. But libertarians don’t run America, as you can tell by examining the size of the federal budget, the size of the surveillance state, the size of the U.S. military footprint, and the size of the carceral archipelago. Those arms of the authorities may be neoliberal in some David Harvey sense—witness the role that networks of nominally private contractors play in each of them—but they’re not anti-statist at all. (Neither are their counterparts in other countries: Since the mid-’70s, public social spending as a share of GDP has increased not just in the United States but in France, the U.K., Japan, and many other rich nations.)

A committed libertarian looking at the Neoliberal Era should feel a lot like a committed socialist looking at the Progressive Era: happy about many changes, unhappy about many others, and disturbed at some of the people adopting their rhetoric. “It was not that liberal ideas were now consciously and openly held and dominant,” the libertarian historian Stephen Davies wrote of this period in a 2020 article for AIER. “Rather it was that explicitly and openly anti-liberal ones had been discredited.” If the era “can be said to have a philosophy behind it,” he added, “it is best described as technocratic managerialism.”

A case in point would be the transformation of New York after the city’s fiscal crisis of the mid-1970s: The government fired public employees and cut back social programs, and a new Manhattan emerged that was dominated by the FIRE economy (finance, insurance, and real estate). This is often described as a triumph of neoliberalism, yet it was driven not just by those austerity measures but by urban planners, who didn’t roll back their interventions so much as they redirected the benefits. So central a role did they play, in fact, that one of the best-known leftist accounts of the transformation, Robert Fitch’s The Assassination of New York, includes a plea that readers encountering his attacks on the planners not mistake him for “an advocate of laissez-faire.” Meanwhile, the city’s budget was climbing again by the mid-’80s.

But just as we shouldn’t lose sight of the different flavors of progressives, we need to remember the sheer variety of the neoliberals. To appreciate the ideological diversity of the period, ask yourself: Who enacted the era’s market reforms?

Some Democrats adopt a simple partisan narrative focused on President Ronald Reagan and his British counterpart, Margaret Thatcher. That obviously won’t do, given the ways Bill Clinton and Tony Blair consolidated the Reagan-Thatcher order. There are somewhat more sophisticated accounts in which right-wing parties launched neoliberalism and then nominally left-wing parties accommodated themselves to the changes. (The socialist writer Nancy Fraser splits neoliberals into “reactionary” and “progressive” camps, with the former looking like Reagan and the latter like Clinton.) This is more defensible, but it still makes the mistake of starting with Reagan and Thatcher. Their predecessors—Jimmy Carter and James Callaghan, respectively—each enacted market reforms too. Carter, who deregulated several industries, was arguably more of a market reformer than Reagan was. And he wasn’t an outlier: In many places that made serious steps toward freer markets, from New Zealand to Sweden, left-of-center parties took the lead.

And while Charlie Peters’ neoliberals are often seen as precursors to the Clintonian centrists, they had roots in the left-wing “New Politics” movement that fueled the insurgent presidential campaigns of Eugene McCarthy in 1968 and George McGovern in 1972. The McGovernites were anti-war, unimpressed with appeals to law and order, critical of the national security agencies, and supportive of a universal basic income. The Clintonites bombed the Middle East, passed a draconian crime bill, deferred to the national security agencies, and made it harder for poor people to collect welfare benefits. But both broke at key moments with organized labor, were open to deregulation and decentralization, and issued rhetorical jabs at big government. In 1971, the year McGovern entered the presidential race, the National Taxpayers Union had him tied for second in its Senate ratings.

In a new book, The Rise and Fall of the Neoliberal Order (Oxford), the Cambridge historian Gary Gerstle argues that “support for neoliberalism spilled beyond Reagan and his political precincts and into the districts of the New Left,” whose “engagement with neoliberal principles can be discerned in the vehemence of its revolt against what it regarded as the over-organization and bureaucratization of American society.” Gerstle also sees signs of neoliberalism in that hippie bible the Whole Earth Catalog and in the consumer movement led by Ralph Nader. The Naderites, he stresses, did not want to deregulate everything. But their “determination to strengthen consumers meant that they, too, began to give priority to improving markets. This meant attacking corporate oligopoly on the one hand and excessive and counterproductive government regulation on the other. Their shared goal was to make consumers sovereign in the marketplace.” Nader’s role in the revolt against the New Deal order is also central to Paul Sabin’s recent Public Citizens (W. W. Norton & Co.).

How far left did neoliberalism go? In yet another recent book, The Last Man Takes LSD (Verso), the sociologists Mitchell Dean and Daniel Zamora put Foucault’s interest in neoliberal ideas in the political context of 1970s France. Foucault, they note, was attracted to a political current called the Second Left, which offered autogestion—self-management—as an alternative to the centralized statism embraced by the Socialist and Communist parties. These were not squishy centrists, and their views should not be mistaken for those of Nancy Fraser’s socially H.R.-compliant, fiscally creditworthy “progressive neoliberals.” Their roots were in anarchism, the militant Catholic left, and the revolutionary ferment that swept France in May 1968; their ideal of autogestion had been embraced, though only temporarily, by the radical regime that took power in France’s former colony of Algeria. Yet by the end of the ’70s, the sociologist George Ross writes, their efforts to exorcise statism from the left were leading them to call “for decentralized bargaining as an approach to social problems of all kinds, for a revitalized ‘civil society,’ and for recognition of the utility, as a decentralized mechanism, of the market.”

They did this just as parts of the French right, led by President Valéry Giscard d’Estaing, were breaking with old Gaullist statist traditions, tentatively turning to more market-oriented policies even as Giscard liberalized divorce, contraception, and abortion laws, rolled back censorship, and adopted immigration and prison reforms. (The president’s closest point of intersection with the left was more personal: He had a mistress in common with the exiled Black Panther Eldridge Cleaver.)

To some French radicals, Foucault among them, these parallel developments on the left and right suggested a new political alignment. That’s the backdrop for, say, Foucault’s discussion of Milton Friedman’s negative income tax, in which the government maintains a safety net by simply sending money to citizens whose income falls below a certain level. Giscard flirted with this idea, to Foucault’s apparent approval: In one of his lectures on neoliberalism, he notes that the “negative tax,” as he calls it, would be “much less bureaucratic and disciplinary” than traditional welfare programs.

And that was before the USSR collapsed, throwing the advocates of state socialism into disarray. After that, the most militant opponents of the institutions that represented David Harvey’s neoliberalism sounded a lot like the Second Left. “Since the end of the Cold War, Neoliberalism has become so ideologically dominant that it is no longer clear whether the real Neoliberals are the leaders of the G8 or the people outside in the balaclavas and the overalls,” Malcolm Bull wrote in 2001. “Take Ya Basta!, the Italian group formed in 1996 in support of the Chiapas uprising….They are fighting under the slogan ‘per la dignità dei popoli contro il neoliberismo,’ but their two key political demands, free migration and the right to a guaranteed basic income, are policies that were once largely the preserve of Neoliberal think-tanks in the United States.” Bull was being cheeky, but he had a point.

* * * * *

If neoliberal is flexible enough for people to fling it at both the anarchists and the G8, it shouldn’t be surprising to see the word applied to both the unschoolers and the World Cup. That’s what happens when you’re talking about a multifaceted era instead of a unified movement. But eras eventually end, and there are signs that this is happening, or perhaps has happened already. Nostalgia for pre-neoliberal days has been rising on both the left and the right, and countries around the world have been erecting new barriers to trade, travel, and communication.

But the end of the Neoliberal Era doesn’t necessarily mean the end of its signature ideas. Progressives did not disappear when the Progressive Era petered out: They spent the 1920s running on fumes, butting heads with each other, and finding homes across the political spectrum. The decade’s Republican presidents did not take a machete to the progressives’ changes, even if they pruned a few; the last of them, Herbert Hoover, was a product of the progressive moment himself. The New Deal of the 1930s was in many ways a resuscitation of progressive reform. At the same time, some of the New Deal’s noisiest opponents were old progressives of the decentralist sort, who distrusted the new concentrations of power and sometimes sounded rather libertarian. When the Progressive Era died, its corpse fertilized the soil for what was to come.

Like the old progressives before them, the old neoliberals will spread out across the spectrum, finding new allies and in many cases new goals. We don’t know whether they’ll fade away or reconstitute themselves and create something as transformative as the New Deal. And if such a transformation does come, we don’t know which side of the old neoliberal order it will reflect. Whichever it is, let’s hope we can come up with a better word for it.

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No Sealing of Police Body-Cam Video in Lawsuit Over Confrontation With Police,

From Tuesday’s decision by Judge Anthony Ishii in Wallace v. City of Fresno (E.D. Cal.):

Defendants argue that the Court should seal a police body-cam video that depicts the confrontation between [Fresno Police Department] officers and [minor plaintiff] Wallace. Defendants state that some of the individuals depicted in the video are minors who have privacy rights. Public disclosure of the video could have an adverse impact on the minor’s reputation and standing in the community. To avoid the danger and harm that could come from release, sealing the video is appropriate….

There is a strong presumption of access to judicial records, including attachments/filings relating to summary judgment.

An exhibit or other judicial record may be ordered sealed if “compelling reasons” to seal outweigh the general history of access and the public policies favoring disclosure…. “‘[C]ompelling reasons’ sufficient to outweigh the public’s interest in disclosure exist when court records might become a vehicle for improper purposes, such as the use of records to gratify private spite, promote public scandal, circulate libelous statements, or release trade secrets.” However, the “mere fact that the production of records may lead to a litigant’s embarrassment, incrimination, or exposure to further litigation will not, without more, compel the court to seal its records.” …

[T]he Court agrees with Wallace that sealing the body-cam video is unwarranted…. Wallace is aware of only one minor (who is his friend) who is depicted in the body-cam video. Wallace represents that the minor is seen for three seconds and is only seen exiting the apartment and walking into a public space. This is an extremely short period of time.

Moreover, the depiction of the minor is by itself immaterial and there is nothing inherently embarrassing about walking out of an apartment. Additionally, Wallace has represented that the video has been reported and circulated in the public domain for over two years. The Court agrees with Wallace that any possible embarrassment, as unlikely as that may be, has already occurred. {If the parties believe that it is appropriate, the Court would likely be amenable to a stipulation to file the video with the minor’s face blurred out.}

Defendants have not submitted any contrary information that indicates that Wallace’s representations are inaccurate. Therefore, the Court must conclude that Defendants have not articulated sufficiently compelling reasons that would justify the sealing of the body-cam video exhibit. If Defendants wish to rely on the body-cam video, the video must be submitted or filed in an unsealed manner and consistent with the Local Rules….

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Pseudonymity Allowed in Challenge to Denial of Religious Exemption to Vaccine Requirement

From Judge Steve Merryday’s order today in Navy Seal 1 v. Austin (M.D. Fla.):

Although acknowledging the “presumption that parties’ identities are public information,” the plaintiffs claim that a privacy interest under governing authority overcomes the presumption. The plaintiffs assert that the privacy of their medical and health information and the privacy of their religious beliefs and practice, as well as the prospect of “stigma, ostracization, retaliation, and other harms,” including threats of violence, require the use of a pseudonym.

The plaintiffs correctly observe that “religion is perhaps the quintessentially private matter.” Prosecution of this action compels the plaintiffs to disclose sincere religious beliefs and to disclose the deeply personal experiences that form the foundation of those beliefs. For example, Lieutenant Colonel 2 opposes any vaccine associated with aborted fetal cell lines because she received an abortion after suffering a rape and later—through her religious devotion—believes herself forgiven, according to her beliefs, for the sin of abortion. Although the defendants argue that the plaintiffs’ vaccination status “is not a matter of utmost intimacy,” this action encompasses substantially more intimate detail than whether a person chose to accept a vaccine.

Further, the plaintiffs point to an array of recent and current actions similar to, or nearly the same as, this action that permit pseudonyms for the same reasons that plaintiffs advance. See, e.g., Does 1–6 v. Mills (D. Me. 2021); Air Force Officer v. Austin (M.D. Ga. 2022). Mills recognizes the “reasonable fear of harm that outweighs the public’s interest” in disclosure because of the “substantial public controversy currently surrounding public and private mandates requiring individuals to be vaccinated for the COVID-19 coronavirus or to provide proof of vaccination status.” Mills (granting leave to proceed pseudonymously to healthcare workers objecting to a COVID-19 vaccination requirement). As in Mills, the plaintiffs in this action challenge the government on the controversial issue of a COVID-19 vaccination requirement. The statements and incidents cited by the plaintiffs adequately demonstrate, and everyday experience in recent weeks and months confirms, an acrid public atmosphere of contention about masks, vaccines, mandates, and the like.

Beyond the plaintiffs’ interests in maintaining privacy and safety, the record shows that little harm results from the plaintiffs remaining innominate. The public’s interest in this action is satisfied by the facts patent in the record—the branches of the armed forces involved; the rank, duty, service record, and the like of the litigants; the nature of the claims and defenses; and the orders of the court. The names add nothing substantial, but enable those who—through “social media,” as well as more immediate mechanisms—intimidate, harass, and defame.

The law is actually quite unsettled as to whether pseudonymity is generally allowed in order to protect information about people’s religious beliefs or even about their having had abortions; for more, see pp. 52-53 (abortion) and 59-61 (religious beliefs) of my forthcoming The Law of Pseudonymous Litigation.

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Another Injunction Against the Military as to Religious Exemptions from COVID Vaccination Mandate

From Judge Steven Merryday’s opinion today in Navy Seal 1 v. Biden:

Here is the short version: Expressly applicable to each branch of the federal government, the Religious Freedom Restoration Act (RFRA) commands the military to grant to a service member harboring a sincerely held religious objection to COVID-19 vaccination a religious exemption from the vaccination (1) unless a compelling  overnmental interest requires the vaccination and (2) unless a good faith evaluation, directed specifically to the singular circumstances of the service member—that is,  directed “to the person” requesting the exemption—demonstrates that no less restrictive means is available to the military reasonably to protect the compelling governmental interest. Under the command of RFRA, the military bears the burden of showing both the existence of a compelling governmental interest and the absence of a less restrictive means of reasonably protecting that interest.

In the instance of Navy Commander and Lieutenant Colonel 2, the Navy and the Marine Corps have failed manifestly to offer the statutorily required demonstration that no less restrictive means is available, and each of the two service members is entitled to preliminary injunctive relief that (1) permits them, pending a final determination on a complete record, to continue to serve without the vaccination and (2) forbids any punitive or retaliatory measure against either by the military pending a final judgment in this action.

The long version follows.

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Court in Civil Case Holds Trump’s Jan. 6 Speech Could Be Constitutionally Unprotected Incitement

In Thompson v. Trump, various plaintiffs are suing President Trump, Donald J. Trump Jr., Rudy Giuliani, and others for injuries (physical or emotional) caused to them in the Capitol as a result of the January 6 riot. The core claims are brought under the federal statute banning conspiracy “to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof.”

Today, Judge Amit Mehta concluded that there was sufficient evidence that President Trump participated in such a conspiracy, and that his January 6 speech wasn’t protected by the First Amendment against civil liability for such conspiracy, because it fit within the “incitement” exception recognized in Brandenburg v. Ohio (1969): Speech is unprotected if it “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” (The court doesn’t discuss any criminal prosecution questions, but in a criminal case the elements of incitement would presumably have to be proved beyond a reasonable doubt; in a civil case, preponderance of the evidence likely suffices.)

Here is the heart of the Court’s incitement analysis (there’s of course much more in the opinion, which is 112 pages long, about various other aspects of the case), followed by some reactions on my part:

The President’s words on January 6th did not explicitly encourage the imminent use of violence or lawless action, but that is not dispositive. In Hess v. Indiana (1973), the Supreme Court recognized that words can implicitly encourage violence or lawlessness. In reversing Hess’s conviction, the Court held that there was “no evidence or rational inference from the import of the language” intended to produce, or likely to produce, imminent disorder. By considering the “import of the language,” and the “rational inferences” the words produce, the Court signaled that there is no safe haven under Brandenburg for the strategic speaker who does not directly and unequivocally advocate for imminent violence or lawlessness, but does so through unmistakable suggestion and persuasion….

Having considered the President’s January 6 Rally Speech in its entirety and in context, the court concludes that the President’s statements that, “[W]e fight. We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore,” and “[W]e’re going to try to and give [weak Republicans] the kind of pride and boldness that they need to take back our country,” immediately before exhorting rally-goers to “walk down Pennsylvania Avenue,” are plausibly words of incitement not protected by the First Amendment. It is plausible that those words were implicitly “directed to inciting or producing imminent lawless action and [were] likely to produce such action.”

The “import” of the President’s words must be viewed within the broader context in which the Speech was made and against the Speech as a whole. Before January 6th, the President and others had created an air of distrust and anger among his supporters by creating the false narrative that the election literally was stolen from underneath their preferred candidate by fraud and corruption. Some of his supporters’ beliefs turned to action. In the weeks after the election, some had made threats against state election officials and others clashed with police in Washington, D.C., following pro-Trump rallies. The President would have known about these events, as they were widely publicized. Against this backdrop, the President invited his followers to Washington, D.C., on January 6th. It is reasonable to infer that the President would have known that some supporters viewed his invitation as a call to action. President Trump and his advisors “actively monitored” pro-Trump websites and social media. These forums lit up in response to the rally announcement. Some supporters explicitly called for violence on January 6th (e.g., calling for “massing hangings and firing squads”). Others took direct aim at the Certification itself (e.g., stating that people in the Capitol should “leave in one of two ways: dead or certifying Trump the rightful winner”) or at law enforcement (“Cops don’t have ‘standing’ if they are laying on the ground in a pool of their own blood.”). These violent posts were discussed “by media outlets regularly viewed by President Trump, including Fox News.” The prospect of violence had become so likely that a former aide to the President predicted in a widely publicized statement that “there will be violence on January 6th because the President himself encourages it.”

Thus, when the President stepped to the podium on January 6th, it is reasonable to infer that he would have known that some in the audience were prepared for violence. Yet, the President delivered a speech he understood would only aggravate an already volatile situation. For 75 uninterrupted minutes, he told rally-goers that the election was “rigged” and “stolen,” at one point asserting that “Third World Countries” had more honest elections. He identified who the culprits were of the election fraud: “radical Left Democrats” and “weak” Republicans. They were the ones who had stolen their election victory, he told them. He directed them not to “concede,” and urged them to show “strength” and be “strong.” They would not be able to “take back [their] country with weakness.” He told them that the rules did not apply: “When you catch somebody in a fraud, you’re allowed to go by very different rules.” And they would have an “illegitimate President” if the Vice President did not act, and “we can’t let that happen.” These words stoked an already inflamed crowd, which had heard for months that the

election was stolen and that “weak politicians” had failed to help the President.

So, when the President said to the crowd at the end of his remarks, “We fight. We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore,” moments before instructing them to march to the Capitol, the President’s speech plausibly crossed the line into unprotected territory. These words did not “amount[] to nothing more than illegal action at some indefinite future time.” President Trump’s words were, as Justice Douglas termed it, “speech … brigaded with action.” Brandenburg (Douglas, J., concurring). They were plausibly “directed to inciting or producing imminent lawless action and [were] likely to incite or produce such action.” Hess….

[T]he court [has] assiduously avoided relying on any allegations that Plaintiffs made about any person’s reaction to the President’s January 6 Rally Speech. (And, Plaintiffs did make such allegations.) {The court takes no position on whether the subjective reaction of a listener might have some relevance to the inquiry.} The court’s conclusion rests on the words spoken and their context, including the audience to whom the President spoke and when he spoke to them….

[T]he President focuses on the fact that when he first alluded to marching to the Capitol, he said he expected rally-goers “to peacefully and patriotically make your voices heard.” Those words are a factor favoring the President…. But the President’s passing reference to “peaceful[] and patriotic[]” protest cannot inoculate him against the conclusion that his exhortation, made nearly an hour later, to “fight like hell” immediately before sending rally-goers to the Capitol, within the context of the larger Speech and circumstances, was not protected expression….

[The President] called for thousands “to fight like hell” immediately before directing an unpermitted march to the Capitol, where the targets of their ire were at work, knowing that militia groups and others among the crowd were prone to violence. Brandenburg‘s imminence requirement is stringent, and so finding the President’s words here inciting will not lower the already high bar protecting political speech….

The nineteenth century English philosopher John Stuart Mill was a fierce advocate of free speech. But Mill understood that not all speech should be protected. In his work On Liberty, Mill wrote, “No one pretends that actions should be as free as opinions. On the contrary, even opinions lose their immunity, when the circumstances in which they are expressed are such as to constitute their expression a positive instigation to some mischievous act.” As an example Mill offered the following:

An opinion that corn-dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn- dealer, or when handed about among the same mob in the form of a placard.

President Trump’s January 6 Rally Speech was akin to telling an excited mob that corn-dealers starve the poor in front of the corn-dealer’s home. He invited his supporters to Washington, D.C., after telling them for months that corrupt and spineless politicians were to blame for stealing an election from them; retold that narrative when thousands of them assembled on the Ellipse; and directed them to march on the Capitol building—the metaphorical corn-dealer’s house—where those very politicians were at work to certify an election that he had lost. The Speech plausibly was, as Mill put it, a “positive instigation of a mischievous act.” Dismissal of Plaintiffs’ claims on First Amendment grounds is not warranted.

Here’s my general thinking: The Court has indeed held that incitement is constitutionally unprotected, and a speech to a large group of people assembled in a place where they can do harm is indeed the kind of thing that could potentially satisfy the “imminence” element of incitement. (Again, recall, that the exception covers speech that “is [1] directed [i.e., intended] to inciting or producing [2] imminent lawless action and is [3] likely to incite or produce such action.”)

As to intent, I’m skeptical that Trump specifically intended to get members of the audience to act criminally, and not just to engage in lawful protest, simply because such criminal action was clearly politically and practically bad for Trump. There was no real chance, I think, that a criminal attack would get the members of Congress to go along with Trump—members of Congress may be cowed by the threat of political retaliation (indeed, in some situations they are supposed to be), but I very much doubt that they would be cowed by even the threat of violence.

This having been said, there may be enough evidence to bring the questions of intent and especially likelihood before a jury, especially if the standard is preponderance of the evidence, as it usually is in civil cases (though note that sometimes the civil standard is elevated to clear and convincing evidence, as with the knowledge/recklessness prong in public official libel cases).

But the bigger point is beyond Trump, I think. As we saw in the twelve months ending with January 6, 2021, political violence is hardly unique to one particular political dispute or one particular side. And any standard for upholding civil liability for such speech (if it’s ultimately accepted on appeal) will surely be applied far beyond this case, especially since nothing in the plaintiffs’ theory is limited to speech by the President, or speech about elections, or speech that leads to an attack on the Capitol as such, or for that matter speech that stems from erroneous factual claims as opposed to correct factual claims or for that matter expressions of opinion. (The courts’ decision, after all, deals with the incitement exception and not the libel exception.)

Say, for instance, that many in the public are deeply upset about what they perceive (rightly or wrongly) as a vast and disproportionate number of police murders of unarmed people of a particular racial group—or for that matter a wide range of other perceived injustice, whether related to racism, economic fairness, labor union rights, environmentalism, or what have you. Movement leaders (whether elected officials or otherwise) echo these sentiments, and indeed help urge these sentiments.

Many of these people gather for a rally, at which a movement leader is speaking. Most of the audience have no violent or otherwise illegal intentions, but some (as in so many movements) do, and the leader, not being an idiot, knows that. The leader speaks for a long time about all the grievances that the audience and he share, and includes statements such as

[W]e fight. We fight like hell and if you don’t fight like hell, you’re not going to have [justice / fairness / a planet] anymore

and

[W]e’re going to try to and give [elected officials / police reformers / etc.] the kind of pride and boldness that they need to take back our country.

He then exhorts the rally-goers to march to City Hall, or a police station, or some oil company headquarters. Unsurprisingly, some of the people then move to on to break into the building, or vandalize it, or set fire to it, or to shoot at police officers protecting it.

Perhaps it’s good if those physically or emotionally injured in the resulting illegal conduct could sue the movement leader for his speech (or perhaps even if prosecutors could prosecute him). Or perhaps it’s bad. But my prediction is that the results that apply to Trump will quickly be applied to lots of other speakers in contexts where some attendees at a political rally act illegally.

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