FIRST AMENDMENT SCHOLARS NEUTER TRUMP’S “THINLY DEVELOPED DEFENSES” TO HIS JANUARY 6 VIOLATIONS OF THE KU KLUX KLAN ACT*
15 JULY 2021
I happened upon what is known as an amicus, or friend-of-the-court, brief in three lawsuits filed against Trump for inciting an insurrection against the United States on January 6. The brief, authored by four of the country’s foremost First Amendment scholars, dissects Trump’s First Amendment defense to the allegations, explains why the First Amendment offers Trump no meaningful defense to the allegations of political intimidation, and offers an expansive analysis, firmly grounded in Supreme Court precedent, that the court should use in evaluating the post-reconstruction and civil rights era measures. The country put those laws in place to assure that citizens of every class and color have the same, equal right and opportunity to vote, and that federal officials must remain unintimidated and undeterred in carrying out their responsibilities.
The history recited in the scholars’ brief reminds us why preserving the viability of these laws is essential if our constitutional republic is to survive, faced again (and still) with a confederacy to deter, if not altogether prevent, certain classes of Americans from voting and Congress’s inability to pass legislation mandating federal oversight to protect all citizens’ right and ability to vote.
Federal law creates the right to sue people who conspire to use force, intimidation, or threats to prevent federal officials from carrying out their duties. Representative Eric Swalwell, Capitol Police Officers James Blasingame and Sidney Hemby, and Representative Bennie Thompson sued Trump for his January 6 conduct. The three lawsuits are assigned to the same federal judge in Washington D.C.
In defense, Trump claims the law, 42 U.S.C. § 1985(1), originally part of the Ku Klux Klan Act of 1871, is unconstitutional as applied to him because it violates his right to engage in “political speech” under the First Amendment. Trump argues that the political-intimidation claims against him cannot survive First Amendment protections unless they fall within two recognized but narrowly circumscribed exceptions to the First Amendment: (1) the “incitement” exception for speech that is “directed to inciting or promoting imminent lawless action and is likely to incite or produce such action” (Incitement Exception”); or (2) the “true threat” exception, or statements where “the speaker means to a communicate serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals” (“True Threat Exception”).
Trump moved to dismiss those claims.
Four First Amendment scholars, Floyd Abrams, Erwin Chemerinsky, Martha Minow, and Lawrence H. Tribe, read the parties’ briefing on Trump’s motion to dismiss. The scholars submitted a friend-of-the-court brief in the three lawsuits, offering to supplement the court record with an analysis none of the parties had provided. Their concern is the far-reaching implications of “inapt interpretations and applications of the First Amendment” on statutes meant to curtail political intimidation and laws designed and passed during reconstruction and the civil rights era to protect the franchise. The scholars, who do not represent any party in the cases and prepared the brief “on a pro bono* bases,” advance what they believe is the correct interpretation of the political-intimidation statute — a construction supported by longstanding First Amendment jurisprudence — and encourage the court to reject Trump’s “thinly developed First Amendment defenses, but to do so on grounds that preserve the effectiveness of political-intimidation statutes generally.”
Untitled, Oil on Canvas, 36" x 26", Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**
The scholars concede the court must determine whether one or both Exceptions apply. They express little doubt, however, that the political-intimidation statute, as applied to the facts of the January 6 insurrection, falls within the Incitement and True Threat Exceptions, and expect the plaintiffs will establish as much. “But that is not all that the Court should say on the subject, because many forms of modern political intimidation do not fall into either exception, and a judicial opinion that made those exceptions the test of whether political intimidation can be punished could have unintended consequences harmful to our democracy.”
The scholars’ concern is that political-intimidation statutes as well as voter-intimidation laws “are collectively vulnerable to erosion” if the court gets it wrong in these cases, and that interpreting the political-intimidation statute as advanced by Trump “would sharply curtail the reach of those statutes at a time when voting, and the public officials who administer voting, are under relentless partisan attack — as the facts of January 6 attest.” The scholars’ “approach not only accords with relevant First Amendment principles but also helps to ensure the continued efficacy of the nation’s legal infrastructure for controlling political intimidation. As the facts of January 6 make clear, the infrastructure is as important to the survival of our democracy as it has ever been.”
While the Brief advances the scholars’ interpretation of the political-intimidation statutes vis-à-vis the First Amendment using history and precedent, it also addresses the historical context and background for the storied passage of these and the voter-intimidation laws. In the face of the current culture and political wars, that, to me, was the most compelling part of the brief. The GOP’s widespread confederacy to prevent black and brown Americans from voting has an unfortunate and altogether familiar ring.
Untitled, Oil on Canvas, 28" x 36", Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**
The Brief gives background of which all Americans should be reminded, highlighting facts and history that bear on the current threats to the constitutional republic — sometimes creative and inevitably thinly-veiled pretexts to target populations they don’t want voting: false claims of widespread voter fraud, including in counties heavily populated by African Americans; swaths of voter restriction laws — putatively neutral on their face but clearly calculated to target certain minorities — as solutions in search of problems; and partisan efforts to undermine the constitutional infrastructure. Some of that history is recited below.
Although the January 6 insurrection may be the most spectacular example of incitement and “true threat” in American history, modern political intimidation often takes subtler forms that these statutes can address effectively — if they do not become neutered by a mistaken application of First Amendment principles. Today, for example, “voters are rarely overtly threatened with physical or economic harm as they were during the civil rights era; instead, voters are deterred from voting through subtler tactics, such as aggressive poll-watching, anonymous threats of harm, frivolous and excessive voter registration challenges, and coercion by employers.” . . . Modern political intimidation embraces a wide and ever-expanding range of coercive tactics, including onsite voter harassment and legally baseless offsite threats of legal harm. . . . [One such statute], in particular, places in the hands of both voters and federal officials a potentially powerful weapon for challenging and overcoming these “softer” forms of political intimidation.
“[T]he Court should apply a categorical First Amendment exception to speech integral to the forms of political intimidation proscribed by § 1985(1).” The categorical exception applies to “speech that is integral to the commission of a crime or tort — speech, in other words, that is the very vehicle by which the crime or tort is committed. That exception is peculiarly appropriate here, where the speech in question is integral to antidemocratic conduct that federal law has proscribed for 150 years.”. . .
Untitled, Watercolor, 29" x 21", Richard J. Van Wagoner, Circa 1970, Courtesy of Van Wagoner Family Trust**
In passing these laws, “Congress act[ed] with a keen awareness of history.” . . . Congress “understood itself to be correcting the nation’s past mistakes iteratively, by building and expanding on solutions it had tried before but had not quite gotten right.” . . . Of particular note, Congress passed the Klan Act in 1871 during Reconstruction and passed the Voting Rights Act during the civil-rights era of the 1960s. “These were defining national episodes. And these statutes were correspondingly ambitious in scope, seeking a real way to define the terms of national citizenship. In doing so, these laws grappled directly with the long history of exclusion in American politics.”. . . . During Reconstruction, when the Klan Act became law, “sweeping changes” in the ability of African Americans to vote and hold office prompted southern whites to respond with a “sustained campaign of voter intimidation through terrorism and violence,” directed not only at African Americans but also at white Republicans and Union sympathizers. . . . “During the debates over the Klan Act, the bill’s supporters repeatedly described the reign of terror imposed by the Klan upon black citizens and their white sympathizers in the southern states. These violent acts went unpunished, legislators asserted, because Klan members and sympathizers were powerful enough that law enforcement would not arrest them, juries refused to convict, and judges would not hold fair trials.”. . . . The Act’s overall purpose, therefore, was “to protect individuals’ rights of national citizenship, including the right to vote,” and its supporters understood that its provisions creating a wide range of federal penalties “entailed a newly expansive view of federal power.” . . . . “By 1872, the federal government’s evident willingness to bring its legal and coercive authority to bear had broken the Klan’s back and produced a dramatic decline in violence throughout the South. . . .”
But Reconstruction ended in 1877 with a political compromise to resolve the contested 1876 presidential election. . . . . As part of that compromise, federal troops stationed in the South were ordered to withdraw from southern political affairs. . . . . At that point, the entire nation — North and South — effectively colluded to abandon the fate of its black citizens to those who would abolish their democratic rights. . . .
Southern states rushed into the void, again erecting barriers to black voters and ushering in the Jim Crow era. Post-Reconstruction, “an elaborate system of poll taxes, literacy tests, grandfather clauses, and other discriminatory policies barred many African Americans from even registering to vote.” . . . In response, Congress enacted the Civil Rights Act of 1957 as “a compromise measure designed to pass through Congress without driving a wedge between the Northern and Southern factions of both parties.” . . . Although § 131(b) . . . barred interference with the right to vote in all federal elections, the law was hobbled by lack of federal enforcement power and a judicially imposed requirement that claims be supported by a showing of “purposeful discrimination.”. . .
The South’s violent (and televised) response to the 1960s civil-rights movement altered the political landscape, giving impetus to the Voting Rights Act of 1965. . . . The statute at issue in the January 6 Suits — § 1985(1) — thus should be viewed as part of a powerful suite of statutes that plays a vital role in stamping out all forms of political intimidation, old and new. . . .
If you are interested in seeing the scholars’ complete analysis, the link to the amicus brief is below. For me, it was fun to read. The analysis, of course, goes into detail concerning the use and meaning of overlapping terms among the various statutes that could be adversely affected by a misapplication of the First Amendment in the political-intimidation statute that forms the basis for the claims before the court.
https://www.documentcloud.org/documents/20986274-swalwell-abrams
*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner and https://lastamendment.com. Rob’s second novel, a beautifully written suspense drama that takes place in Utah, Wyoming, and Norway, dropped on November 17, 2020. Available on Amazon, Barnes and Noble, Apple Bookstore and your favorite local bookshop, this novel, The Contortionists, which Rob himself narrates for the audio version, is a psychological page-turner about a missing child in a predominantly Mormon community. I have read the novel and listened to the audio version twice. It is a literary masterpiece. The Contortionists, however, is not for the faint of heart.
**Richard J Van Wagoner is my father. His list of honors, awards and professional associations is extensive. He was Professor Emeritus (Painting and Drawing), Weber State University, having served three Appointments as Chair of the Department of Visual Arts there. He guest-lectured and instructed at many universities and juried numerous shows and exhibitions. He was invited to submit his work as part of many shows and exhibitions, and his work was exhibited in many traveling shows domestically and internationally. My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father’s work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his artwork. The photographs of my father’s art reproduced in https://medium.com/@richardvanwagoner and https://lastamendment.com are hers