Try not to make people stupider about law. It’s been a guiding principle here, whether it serves to promote outcomes I support or prefer or not. This doesn’t mean that I won’t argue against extant law that I think is wrong, but that I won’t claim that the law says something it does not, omit salient facts which impact an outcome or introduce facts that I don’t believe to be accurate. I may fall short on occasion, for which I apologize, but I will not do so intentionally.
Others do not share my concerns. Some play fast and loose with facts, law and the heartstrings of non-lawyers for the sake of collecting “likes,” followers or validating the feelings of the ignorant. It’s often done for their cause, and justified by the sincere belief that the outcome matters enough, so much, that there is no means so dishonest, disreputable, disgraceful, that they would not use it. “By any means necessary” matters more than honesty.
Then again, these are open partisans who make no secret of their purpose, to foment outrage and muster support for their cause. Others, however, are more sneaky in that they present as credible sources of law, if not necessarily neutral sources, and consequently worthy of the public trust.
From a brief filed by the California Attorney General’s office in Ogilvie v. Gordon, a case dealing with restrictions on personalized license plates (such as exclusions of “racially degrading term[s]”):
There are well-defined and narrowly-limited classes of speech, “the prevention and punishment of which have never been thought to raise any Constitutional problem.” Chaplinsky v. N.H., 315 U.S. 568, 571-572 (1942) (emphasizing that certain types of speech are protected by the First Amendment). Obscenity, vulgarity, profanity, hate speech, and fighting words fall outside the scope of the First Amendment’s protections.
As Eugene Volokh points out, the Califorinia AG pulled a bit of a fast one in there, including in its list of “well-defined and narrowly-limited classes of speech” two words: Hate speech. They’re not at the beginning of the list (primacy) or the end (recency), but buried in the middle of the list. If you read quickly, you could miss them. But Eugene didn’t.
Actually, nothing in Chief Justice Roberts’ separate opinion in Brunetti, or the majority opinions in Brown and R.A.V., says or even suggests that “hate speech” is “outside the scope of the First Amendment’s protections.”
As this is the brief of the California Attorney General, certainly a credible source as far as non-lawyers are concerned, and likely a credible source for a great many lawyers as well, the inclusion of “hate speech” within the list of “well-defined” exclusions would clearly suggest that it’s an accurate statement of law. Except it’s not.
If California wishes to argue it should be, that’s fine, and there will be arguments against and the issue can be decided. But that’s not at all what’s happening here. They’re trying to slip it in instead, as if it’s already a prohibited category of speech. And if someone isn’t on top of First Amendment law, or a lawyer, or passionately believes hate speech can’t possibly be constitutionally protected because it’s awful, they found a credible source (as opposed to Howard Dean) to point to.
Can this really happen? Can Judge Emmet Sullivan void this pardon? Of course not. The pardon power belongs to the president, for better or worse, and is unreviewable. Article II, Section 2, of the Constitution states:
[The President] shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
Like it or not, if the president pardons someone, even with the worst of motives, he’s pardoned. It’s arguable whether it would subject the president to potential culpability for the misuse of the power, but that doesn’t make the pardon any less effective. And that doesn’t mean that the president can grant himself a pardon, which remains an unanswered if unserious question. But Flynn is pardoned. No judge gets to review it. No judge has the authority to change it. It’s done.
These are offered only as the day’s examples of credible sources making people stupider as to law. After dinner last night, one of my house guests from Cambridge (who put Harvard as the Number 3 best engineering school on Mass Ave., after Lesley University) raised this question to me, explaining that he read commentary in a credible media outlet about Justice Amy Coney Barrett’s “deciding” vote in Roman Catholic Diocese of Brooklyn v. Cuomo being the product of her “clear” bias, pointing out that she’s an “originalist” who believes she magically knows what as in the Founding Fathers’ minds when they adopted the Constitution.
After some explaining about the meaning of originalism, textualism, enumerated rights and tenets of statutory interpretation, he asked me, “how are we supposed to know who to believe?” It was a very good question.
We see it here all the time, the non-lawyers who insist on informing us in the comments of what they believe the law is, and arguing vehemently and often ad nauseam, for the correctness of their belief, whether it’s completely wrong, overly simplistic or that difficult mix of accurate law and crazy gibberish. I can occasionally be a bit snarky in dismissing the crazy, trusting the lawyers here to recognize the difference between law and nonsense. Hopefully, the non-lawyers here also grasp that distinction, when all the lawyers seem to take something as obvious and uncontroversial, and yet some non-lawyer lacking impulse control feels compelled to chime in and dispute real law with whatever batshit crazy notion they heard by some influencer on Youtube.
Perhaps the California AG made a mistake, some kid assistant snuck the words “hate speech” into their brief and no grownup noticed. Perhaps Glenn Kirschner has forsaken any intention of being taken seriously so he can be a permanent guest on the Joy Reid comedy hour. But for the non-lawyers who want to form opinions on accurate statements of law, to whom do they turn? How would they know? As lawyers, do we have an ethical duty not to make people stupider about law? Does that duty extend to correcting fellow members of the guild spewing lies for the cause?