Sunday, August 13, 2023

On the Subject of Core Political Speech

The standard defense to the third indictment offered by Trump supporters is that his actions were free speech, protected by the First Amendment, and in fact, core political speech.*

Look, let's do some very simple basics here.  Not all speech is protected by the First Amendment.  For instance, if you were to go into the Corner Convenience Store, walk up to the cashier and say, "Empty out the cash registrar drawer or I will blow your head off," that does not fit within your right of free speech under the First Amendment.  (And if you really are pointing a gun at the cashier, that is not protected by your Second Amendment right to keep and bear arms.  And if you are actually just pointing a stick of deodorant under your jacket, it is still  crime).

If you walk into the Corner Convenience Store, see that they carry Bud Lite, and says, "I am outraged that you carry Bud Lite.  All your obscene profits from selling Woke Beer should be expropriated and turned over to Moms for Liberty," that is core political speech and is protected by the First Amendment.**

Suppose you follow up that speech by opening your coat to show that you have a gun (with proper concealed carry permit) and gesture menacingly toward it and add, "In fact, I'd like to ask a favor.  Would you be willing to open the cash registrar drawer?  I want to make a donation to Moms for Liberty," and empty out the drawer when the cashier opens it, that is still armed robbery and not constitutionally protected political speech.  The fact that you asked nicely and gave the illusion of choice does not make the request to open the drawer merely "aspirational" as opposed to coercive. And it is not a defense if you really do donate the money to Moms for Liberty.

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*And some detractors have suggested that Trump supporters were planning to defend him from charges of seditious incitement by arguing First Amendment.  When the charges actually came down for conspiracy to obstruct an official proceeding and violate civil rights, the just stuck to the old script because they did not have a new one.
**That being said, if you make a scene, the Corner Convenience Store can bar you from the property and have you arrested as a trespasser if you come back and that would not violate the First Amendment because the Corner Convenience Store is a private actor.  And if you make a big enough scene, you might even be charged with disturbing the peace, still within the bounds of the First Amendment.

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