Reminder: Paradox of Intolerance

[Alexander Of Assyria]

14. That's the problem, hate speech should not be free speech, and is not if in a violent conspiracy.

Last edited Mon Dec 19, 2022, 12:42 AM - Edit history (1)

…reasoning is as follows, though the reasoning by scotus…must be imminent danger of violence to be prohibited hate speech… is just messed up…

2. The TSI Comports with the First Amendment
Rehl next asserts the TSI “violates the First Amendment because it rests solely on [his] political views and First-Amendment protected statements.” ECF No. 439 at 1. Not so.
This Court has already rejected a similar argument based on the Section 1512(c)(2) count in the FSI. Nordean I, 579 F. Supp. 3d at 52–54. As before, the First Amendment does not protect the conduct with which Rehl is charged. Rehl and his codefendants are charged with several conspiratorial agreements as well as “conduct involving acts of trespass, depredation of property, and interference with law enforcement, all intended to obstruct Congress’s performance of its constitutional duties.” Id. at 53; see generally TSI ¶¶ 25–124. No matter Defendants’ “political motivations or any political message they wished to express, this alleged conduct is simply not protected by the First Amendment.” Nordean I, 579 F. Supp. 3d at 53; see also Grayned v. City of Rockford, 408 U.S. 104, 116 (1972) (“[W]here demonstrations turn violent, they lose their protected quality as expression under the First Amendment.”).
Rehl’s contrary arguments—to the extent the law-of-the-case doctrine does not preclude them altogether—do not cause the Court to question this reasoning. To start, he objects that “[m]any of the alleged statements preceded the dates of the alleged conspiracy” and “there is no allegation in the Indictment that [his] statements met the clear and present danger standard.” ECF No. 439 at 2. On the second point, Rehl points to the Supreme Court’s well-known decision in Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (“[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law
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violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”).
Rehl blurs the distinction between statutes that criminalize speech itself and the Government’s use of a defendant’s statements as evidence of a separate crime. Brandenburg deals with the former, but this case involves the latter. The Government has not charged Rehl with speech crimes. Rather, Section 2384 “proscribes ‘speech’ only when it constitutes an agreement to use force against the United States.” United States v. Rahman, 189 F.3d 88, 114 (2d Cir. 1999). The TSI charges Rehl and his codefendants with “conspir[ing] to use force, not just to advocate the use of force.” Id. at 115. So it raises no concern under Brandenburg or related cases. And to the extent Rehl also challenges the Government’s use of his statements as evidence, Supreme Court precedent forecloses his argument. See Wisconsin v. Mitchell, 508 U.S. 476, 489 (1993) (the First Amendment “does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent”). Thus, the First Amendment provides no basis to dismiss any count in the TSI.