The analogy Keith Kaplan made to me was a good one. Can you imagine some biglaw firm coming in as amicus on behalf of the government in a criminal prosecution? It seems ridiculous, but then, it occurred to me that it’s not as outlandish as it would appear at first blush. What, for example, if the government cut a sweetheart deal with a billionaire? Or maybe some judge approved a plea deal to let a statutory rapist off with probation? As Judy Tenuta used to say, “it could happen.”

My hope and expectation is that the Texas Tornado, Mark Bennett, will get down in the weeds to parse the substance of the argument made by the Duke Law School First Amendment Clinic in its amicus brief arguing against the challenge by criminal defendant, John Rivello, for sending an “animated strobe gif” to “known epileptic” Kurt Eichenwald. The particulars of the case are one thing; the fact that Duke’s First Amendment Clinic proffers its mission to be to limit the First Amendment to speech that law students deem worthy goes well beyond the particulars of this case.

The brief, which was drafted by third-year clinical students Kyle Nodes, Ryan Rizzuto, Luke Morgan, and Bryan Czako, concerns whether using Twitter to privately send a flashing graphic with the words “YOU DESERVE A SEIZURE FOR YOUR POSTS” as a text overlay constitutes protected speech under the First Amendment when sent to a known epileptic. The recipient of the graphic, Kurt Eichenwald, is a journalist and active Twitter user who has spoken publicly about his struggles with epilepsy. When Eichenwald opened his inbox on Twitter on Dec. 15, 2016, the “gif” caused him to suffer a severe seizure and triggered a myriad of subsequent health issues.

No doubt these 3Ls believe they’re doing “god’s work,” notwithstanding their indoctrination of God being antagonistic to free speech by their pedagogues.

In the brief, the clinic argues that the sending of this particular strobe gif in this context does not constitute speech within the First Amendment’s meaning and should not be afforded First Amendment protections. Rather, the brief explains, although the words included in the text overlay themselves could be considered expressive speech, permitting criminals and tortfeasors to shield themselves from liability for their actions by layering on supplemental speech would undermine proper government regulation unrelated to the values underlying expressive conduct doctrine. Indeed, the brief notes, “[a] brawler who tattoos a message onto his knuckles does not throw every punch with the weight of First Amendment protection behind him.”

In the culture war, analogies are the second casualty. Their brawler analogy is particularly awful, given that it involves a physical punch, a detail that to any modestly intelligent law student should have stood out as a significant failure. Not so at Duke. But bad analogies are hardly the worst of Duke Law’s focus.

In explaining why the clinic chose to file a brief in opposition to the expansive First Amendment arguments in this case, Rizzuto noted, “The First Amendment is at its strongest when its protections are reasonable. It does not protect language or conduct that is itself a means of committing a tort or crime punishable for reasons unrelated to expression.”

The dreaded “reasonableness” stance, behind which every insipid scold takes refuge. Academics, in their quest to rationalize away “hate speech” and “toxic ideas” from First Amendment protection, have pushed upon their impressionable students and anyone else in need of confirmation bias, the notion that the “point” of free speech is to protect “good” speech, worthy speech. Of course, speech that’s unreasonable can’t be worthy, or it wouldn’t be unreasonable.

Put aside the question of whether reasonableness is determined by 24-year-old law students, and consider that this is the rhetorical equivalent of “War Is Peace, Freedom Is Slavery, and Ignorance Is Strength.” And this, according to the brief, is the mission of the Duke Law First Amendment Clinic.

INTEREST OF AMICUS CURIAE

The First Amendment Clinic at Duke Law (the “Clinic”) has a public mission to protect and advance the freedoms of speech, press, assembly, and petition. The Clinic represents clients with First Amendment claims and provides public commentary and legal analysis on First Amendment issues.

The Clinic and its student attorneys have a particular interest in ensuring the proper boundaries for the First Amendment’s protections.

Does one “advance the freedoms of speech” by “ensuring the proper boundaries”?

Said Nodes, “The clinic seeks to preserve the potency of First Amendment defenses, and allowing such defenses to go unchecked threatens the viability of First Amendment arguments.”

The contention, apparently, is that without restricting the scope of the First Amendment, it will lose its “potency.” If speech goes “unchecked,” it will “threaten the viability” of speech. But it’s not as if there’s no method behind the madness of this facially Orwellian rhetoric. Beneath this nonsense is the belief that free speech has gotten “out of control,” replete with unworthy speech, hate speech, hurtful speech, and that speech is undeserving of protection.

If left “unchecked,” popular sentiment will go against speech and the worthy will be silenced along with the unworthy. Better for these brave students at Duke Law to participate in establishing what they deem the reasonable boundaries of free speech to preserve the viability of worthy speech than to let free speech collapse entirely in the face of the angry mob.

The First Amendment is at its strongest when its protections are reasonable.

The First Amendment is worthless if it only protects speech that enjoys popular approval. Or the imprimatur of “reasonableness” as determined by a few impressionable Duke law students and their enablers, Lecturing Fellow Nicole Ligon ’16 and Professor Jeff Powell AM ’77 PhD ’91 of the First Amendment Clinic and alumnus Daniel Stockton ’16.