Some clarity on the First Amendment in criminal cases.
Things you say can be used against you as evidence in criminal cases.
But, the govt can’t criminalize your speech itself because the First Amendment protects you specifically from that.
Neither can the govt prosecute you for your beliefs without violating the First Amendment.
So laws that penalize “content” of some kind are almost always unconstitutional, including criminal ones.
If, however, based on your protected beliefs or speech, you take action that somehow violates the law, your beliefs or speech could potentially be used to demonstrate the motive for your conduct or the purpose for your actions. That usually doesn’t violate the First Amendment.
Just because you have a First Amendment protected view doesn’t mean everything you do to act on it is legal.
However sometimes it’s clear the reason the govt is prosecuting a case isn’t really the claimed conduct at issue, but rather the protected belief that the govt disfavors.
That could be a selective prosecution case that might therefore be unconstitutional.
In fraud cases, falsity is an issue so they can sometimes get into issues of belief/speech. In that case the govt may prosecute & the judge will have to instruct the jury carefully on the 1st A.
Sometimes also, the govt’s lawyers’ arguments or their theory of guilt sound an awful lot like they are condemning speech or belief instead of conduct. In that case, the defense must press the judge to warn the jury in instructions about the defendant’s First Amendment rights.
The reason Trump’s case feels like a First Amendment case is twofold. First, because the govt’s theory of criminality is that he was told x by people & therefore he “knew” his statements were false, which seems like it’s criminalizing his beliefs & political speech.
Second, the First Amendment protects petitioning the govt as well as speech. Even if entirely cynical & power seeking, actions that challenge the govt - such as by using legal, political, & speech mechanisms - are protected by the First Amendment. We want it to be that way.
If there is not a substantial amount of leeway for these kinds of actions, there is no true political freedom.
Trumps case has all of these issues & therefore presents a complex First Amendment situation.
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I’m late to the SCOTUS party today because we are moving today!
But I wanted to let you guys know that the decision today about the SEC is a huge win for liberty lovers. The case is Jarkesy.
The Court ruled the govt can’t impose fines on people for alleged fraud w/o a jury.
This decision is constitutional & therefore should directly affect all the other administrative agencies that have civil fraud penalty schemes too, like HUD, HHS & a bunch of others.
This has been one of the most common constitutional violations perpetrated by the federal govt.
As a young lawyer I was astonished these schemes were considered legal. It seemed obvious to me that they were unconstitutional.
The first one I worked on I was horrified because the SEC lawyers were so tyrannical- precisely because there was no check on them, judge or jury.
1st Amendment Praetorian (1AP) is/was a nonprofit organization that I represented (pro bono) prior to Jan6 & before the congressional J6 Committee. They provided security for speakers at various events before & after the 2020 election.
If you followed me then, you will know that I lodged formal written objections on behalf of 1AP to the J6 Committee because the Committee was trying to violate 1AP’s 1st Amendment right to freedom of association by demanding information & testimonies from this nonprofit.
I’ve now listened to Mark Levin’s argument about SCOTUS taking DJT’s case by writ. I agree it’s at least possible, tho as Mark agrees, rare. I said this in my Daily Wire interview this morning.
The statute he cites 28 USC 1651 is right but he’s not right that it can be done now.
SCOTUS’ writ power is “in aid of” its appellate jurisdiction. So, 1. there must be a federal issue in the case, which I think there is.
But 2. there must also be a judgment that the writ is seeking review from.
I see only 2 ways that there could be such a judgment:
1. A judgment in the criminal case - which only comes once the sentence is rendered - &/or the failure of Merchan or other judges to stay any sentence; &
Having gotten the actual jury instructions (thank you @KingMakerFT), it now comes clear what DJT was charged with/convicted of. Most of the reporting on this has been wrong because reporters don’t understand the law.
He was charged with 34 counts of violating NY penal section 175.10, a falsification of books & records offense that becomes a felony if you do it with intent to cover up a second crime. 👇🏻
Bragg’s office said & the judge clearly instructed the jury that the second crime was NY code section 17-152, a misdemeanor conspiracy statute prohibiting promoting the election of any person by “unlawful means.”
1. There are multiple, well founded grounds for actual reversal on appeal in the DJT NY case. Unlike in most ordinary cases where as a practical matter there are few.
2. The conviction does not preclude DJT from running for President or serving as President.
3. Any sentence will likely be stayed pending appeal under normal legal principles, if not by Merchan, then by a courts of appeals.
4. Thus, as a practical matter, this verdict very likely does not change anything between now & Nov.
Except there will be more legal maneuvering in this case & the others.
Free speech. In the coming years, I think we're going to see a lot of free speech cases. It is one of the most important aspects of our liberty based republic. We must defend it at all costs. Literally no other rights can be defended w/out it, at least not nonviolently.
It is vital that the Right of Center understand and insist upon having free speech. It is both a legal right against the govt (First Amendment) AND a social, civil value that makes our civilization work.
The First Amendment restricts the govt's power to suppress free speech. Most people know this in a general way - you can't be jailed for your views.
An increasingly important issue, however, involves the govt's speech/views, esp when it is in conflict with those of citizens.