It was a heady day at the Supreme Court for people who aren’t Howard Dean. The Court issued two opinions, which spoke as clearly as legally possible to the trendy “hate speech isn’t free speech” mantra: Yes, it is. It’s free speech.

We now hold that this provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.

Had Justice Alito stopped there, written nothing further, we would have been fine. After all, this was the holding, and all the holding that was really needed to accomplish the two things that were needed of the Court. We knew who won. We knew why. Problem solved.

But, of course, the Court didn’t stop there. Continue reading →

The headline reads “Free Speech Advocates to Gather at Lincoln Memorial on June 25.” It’s a disingenuous headline, at something called Bigly Politics, as these fair weather advocates don’t give a damn about free speech, per se, but about their free speech and smacking the other team.

There has been a battle for free speech happening across the country in cities from Boston to Berkeley — and now it is heading straight for the nation’s capital.

On June 25, free speech activists will gather at the Lincoln Memorial to protest against the violent attempts to suppress right wing voices. An array of speakers will be taking the mic at the event, including Kyle Chapman (better known as Based Stick Man), Tim Treadstone (better known as Baked Alaska), Jack Posobiec, Augustus Invictus, Kyle Prescott, Jason Kessler, Irma Hinojosa, and James Allsup.

This is about “right wing voices” fighting for right wing free speech against left wing suppression, and particularly the Antifa. Granted, right wing voices have been targeted for silencing by the Antifa, and it’s not that they don’t have a legitimate beef. It’s just that they don’t get to pretend they’re neutral free speech advocates. See list of speakers for confirmation. Continue reading →

Former St. Anthony’s. Minnesota, police officer Jeronimo Yanez was acquitted of the killing of Philando Castile. Thousands took to the streets to block I-94 in St. Paul to protest the verdict, or more broadly, the anger and frustration of cops killing blacks with seeming impunity. While this reaction might be understandable as emblematic of the frustration felt by a community, it wasn’t going to do anything to stop the killing.

Police holding wooden batons formed a line to block the crowds protesting on I-94, ordering them to disperse, as heavily armed troops with armored vehicles were positioned nearby. Police have also reportedly closed off the adjacent bridges, leaving the protesters only one way to leave. At least three police buses were reported to have been dispatched.

The image of cops with batons blocking protesters might have become a rallying image at a different time. Here, it was just cops doing their job. Continue reading →

A few months ago, I reiterated my desire to find something new, different, to do with myself. Since then, I’ve responded to some “help wanted” postings, mostly having to do with writing. When I learned that Jameel Jaffer had started the Knight First Amendment Institute at Columbia, I twitted at Jameel to send me an email so I would have his email address. He was kind enough to do so.

Scott — good to connect with you.

Jameel Jaffer
Executive Director
Knight First Amendment Institute at Columbia University

And I replied with the purpose of my request for an email from Jameel: Continue reading →

There was a time when the Gay Pride parade was an outlandish, outsider affair. The participants often tried to shock the crowds, their way of telling people they were here, they were queer, and they were going to stick some part of their anatomy in your face whether you liked it or not. It must have been fabulous to watch the shocked expressions of school marms and polite society, as they clutched their pearls while some mostly naked guy on a float clutched his.

But now that LGBT+++ has gone legit, and the back of some transvestite’s g-string has the Amazon logo on it, it’s not the same.

Pride is clearly also for corporations who want to milk as much money as possible from a previously ignored demographic. In the past decade or so, companies have scrambled to prove how O.K. they are with L.G.B.T.Q.I.A.+ folks, and well, it’s embarrassing how transparent the scramble for our money is.

How to know when you’ve made it as a demographic? Somebody targets you for money. Continue reading →

Attorney General Jefferson Beauregard Sessions III explained in a WaPo op-ed why he reversed a 2013 Holder memo to prosecutors by directing them to seek the highest provable charge that will trigger mandatory minimum sentences.

First, it is a core principle that prosecutors should charge and pursue the most serious, readily provable offense. This policy affirms our responsibility to enforce the law, is moral and just, and produces consistency. This policy fully utilizes the tools Congress has given us. By definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences.

He leaves open the door for the exercise of discretion, with supervisor approval. This is the front end of the prosecutorial system. On the back end, he informs prosecutors to go for the max as well.

Second, prosecutors must disclose to the sentencing court all facts that impact the sentencing guidelines or mandatory minimum sentences, and should in all cases seek a reasonable sentence under the factors in 18 U.S.C. § 3553. In most cases, recommending a sentence within the advisory guideline range will be appropriate. Recommendations for sentencing departures or variances require supervisory approval, and the reasoning must be documented in the file.

Continue reading →

Over the years, I’ve been blessed to have kind, smart people help me with SJ. As should be apparent, I type but never proof my posts. No, these aren’t briefs or memos, and yes, my people do have a tradition of proofreading, but only of other people’s writing. Not our own.

Dear Marilou was my editor a long time. Then David Meyer-Lindenberg did the heavy lifting for me. But his other responsibilities have overtaken his available time.

So, I need some help. I need an editor.

If you have the chops, the willingness to clean up my mess every morning and the time to help (like I have the time to write), please let me know. Understand that I will rely on you. As David will tell you, it’s a responsibility, for which you get to enjoy the same great prestige and wealth that I do. In other words, it’s a burden, but you will have my thanks and appreciation, and enable me to continue to produce SJ without looking like any more of a blithering idiot than my correctly-spelled words and grammar deserve.

Thank you.

Note: When I wrote the following post, I assumed, wrongly, that there was a jury trial. I was careless and presumptive with a fact, for which I was wrong and have no excuse. It was not critical to what I wanted to write about, but that does not explain my error.  I leave this post up as a reminder that I can be just as wrong as anyone else, and that it would and should have been very easy to get it right in the first place, and I failed to do so. I apologize for my error.

Convicted after a trial by jury, and as reprehensible as her conduct was, Michelle Carter was now a killer.

Ms. Carter’s conduct was morally reprehensible. But — at least until today’s ruling — it was clearly legal. While some states criminalize the act of convincing people to commit suicide, Massachusetts has no such law.

Robby Soave goes on to raise the dreaded problem that seems to force its way into so many things lately.

Moreover, speech that is reckless, hateful and ill-willed nevertheless enjoys First Amendment protection. While the Supreme Court has carved out narrowly tailored exceptions for literal threats of violence and incitement to lawless action, telling someone they should kill themselves is not the same as holding a gun to their head and pulling the trigger.

But then, the jury isn’t where such issues of law are hashed out. Michelle Carter never stood a chance before a jury, because what she did in encouraging, cajoling, pushing her boyfriend, Conrad Roy, to suicide was awful. Jurors are people. No normal person could not find her actions awful. She was doomed. Continue reading →

Somebody’s feelz were hurt really, really bad, so they disrupted something because they felt it was so terribly wrong!

A production of “Julius Caesar” in Central Park was disrupted on Friday evening by two protesters who objected to the bloody scene in which the title character, played by an actor costumed and styled to resemble President Trump, is knifed to death.

A woman who later identified herself on social media as Laura Loomer jumped onto the stage just after the assassination of Caesar and began shouting, “Stop the normalization of political violence against the right,” and, “This is violence against Donald Trump.” Ms. Loomer describes herself as a “a right-wing investigative journalist and activist” who has previously worked with James O’Keefe, the conservative activist known for selectively edited undercover video investigations.

The SJWs have the Antifa, silencing what they decry as hate speech on campus. The alt-right has Loomer and her enabler, Jack Posobiec, who doubled down on the disgrace. Continue reading →

My pal, Elie Mystal, couldn’t believe the jury in the Bill Cosby rape trial has yet to convict him. Elie knows he’s guilty, as do so many people who didn’t sit through the trial, because he just is. And maybe he is. But not for the reasons Elie gives.

What’s amazing about the Bill Cosby trial is that it’s not really a “he said, she said” situation. Obviously, the victim says that she was assaulted and Cosby says that it was consensual, but the facts aren’t really in dispute. Think about it this way:

• Andrea Constand came over to Bill Cosby’s house. Undisputed.
• Andrea Constand did not say “Bill Cosby, I’d like to have sex with you now.” Undisputed.
• Bill Cosby gave Andrea Constand drugs, and didn’t tell her what they were. Undisputed.
• Bill Cosby put his hand down her pants. Undisputed.

Sounds pretty damning, right? Or not really damning at all. Do you know the tragedy of the Pennsylvania rape statute? I thought not. It’s not a story Elie might tell you. It’s an old lawyer legend. Continue reading →