The Latitude of Constitutional Free Speech

George Rebane

With the upcoming Trump trials it’s time to take a more focused look at how his indictments for exercising ‘unconstitutional speech’ are holding up in the land of the First Amendment and free speech.  As a starting point I’ll take a leftwing reader’s comment in the most recent Sandbox.

*****

George

Do you have the right to free speech to spread information you know is a lie or not verifiable when it is your official duty to deal with the truth? That's what Trump is accused of. Also can you note your sources that cite that Pence has the Constitutional right to pause the election certification and if so for how long. Also does that mean that Trump would remain President until the whole matter is sorted out? Also how would the other members of the Executive branch have to deal with it, for example cabinet members and Presidential appointments. Has this ever happened before?

Links supporting your contention would be helpful.

Posted by: Paul Emery | 13 August 2023 at 06:44 PM

*****

First Amendment of the US Constitution – “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” (more here and here)

As can be seen from his subsequent Sandbox exchange with other readers, Mr Emery continues to have a problem with staying on the topic he raises in the above comment.

Do you have the right to free speech to spread information you know is a lie or not verifiable when it is your official duty to deal with the truth? That's what Trump is accused of.   The short answer is YES since the Constitution is silent on such a question.  And we must remember that politicians have the same rights to exercise free speech as those enjoyed by non-politicians, especially when both are claiming to express and communicate their beliefs.

Also can you note your sources that cite that Pence has the Constitutional right to pause the election certification and if so for how long.

This question exhibits a misunderstanding of our Constitution which is not intended to be a document of permissions granted by the state.  If the Constitution is silent on some matter or issue, then it cannot be appealed to resolve the matter by any third party inserting their gratuitous interpretation (see Pence's letter below).  In the electoral vote certification matter, the Constitution is only clear in requiring the Senate, chaired by the VP, to examine and count the submitted electoral votes, and certify them if they found to be legitimate.  It prescribes no time frame nor process that the VP must undertake to become convinced one way or another about the legitimacy of what he has at hand.  Therefore, he is free to follow his own counsel on how to proceed toward a certified electoral vote.

Also does that mean that Trump would remain President until the whole matter is sorted out?  Also how would the other members of the Executive branch have to deal with it, for example cabinet members and Presidential appointments. Has this ever happened before?

Again, since the Constitution is silent on such a contingency, one can presume the sitting government remains in place and functional until a new in legally accepted – in this case, until the presiding VP makes up his mind on how to resolve the matter.  Here we see that Pence acted totally within his several Constitutional prerogatives in accepting the electoral vote as it was presented.  VP Pence stated in a letter (here and here) that he does not have the unilateral authority to reject the electoral votes presented to him.  That is an erroneous interpretation of the First Amendment.

This situation regarding the electoral college and the transfer of power has not happened before in our Republic’s history.  Here is the complete copy of Trump’s fourth indictment issued by a Georgia grand jury.

Comments

[Gregory]

"If the Constitution is silent on some matter or issue, then it cannot be appealed to resolve the matter by any third party inserting their gratuitous interpretation (see Pence's letter below)."

But... but... Roe v. Wade!

It wasn't in the Constitution until a court decided it did. But it didn't hold.

Now, in California, a woman has a right to abort an infant even as the birth progresses. Yes, you can have the kid disassembled and removed in pieces before it breathes its first breath, if you can find an MD who will do such a thing.

[Individual Juan]

The charges against Trump are not free-speech related. The charges are conspiracy related, hence the RICO/racketeering related charges.

Trump wants us to think he was just "thinking" out loud.
So, it is good to see several of his henchmen indicted as well.

[George Rebane]

Juan 1152am - Is talking to other people about your thoughts and beliefs a conspiracy? The accpeted definition of a conspiracy includes the notion of secretive planning of an act (usually but not necessarily illegal) undertaken by more than one person. How does Trump qualify?

[Don Bessee]

So when can we expect indictments of these folks? LOL

https://www.breitbart.com/politics/2023/08/15/democrats-denied-election-results-more-than-150-times-before-trump-was-indicted-for-challenging-election/

;-)

[Individual Juan]

George 1220pm

"Is talking to other people about your thoughts and beliefs a conspiracy?" Obviously not.

But conspiring with your henchmen to create false electors, creating conspiracies right and left, continuously reaffirming those conspiracies even when you know they are debunked, conspiring to get the vice president to lie about the election results, trying to get the Georgia Secretary of State to lie about the election results in his state, all add up to the workings of a criminal mind.

Notice how similar the words conspiring and conspiracies are? Hmmm...

Remember the Obama birth certificate conspiracy theory? Conspiracies are Trump's stock-in-trade.

[Scott O]

for Lonesome Johnny and the other foaming-at-the-mouth Trump haters:
"That Trump made such attempts is not disputed. The question is, what did he do that was illegal?"
By John Hinderaker who is a conservative lawyer but by no means a fan of Trump.
"You can’t aggregate a series of legal acts and make them a crime by calling them a conspiracy."
https://www.powerlineblog.com/archives/2023/08/i-read-the-georgia-indictment-so-you-dont-have-to.php
Just as you can't consider people's actions illegal by calling them "henchmen".

[George Rebane]

Juanj450pm - You continue off base. There was no conspiracy to "create false electors". There was only a completely permissible question as to the legitamezy of some existing electors given the number of election "irregularities" that were documented and remain so today. No one persuaded Pence or the GA SecState to lie about the election results. They were just asked to reexamine the irregularities of the past election and correct the vote counts as appropriate.

And the Obama birth certificate conspiracy theory (the "birther issue") was started by Hillary Clinton during the 2016 election campaign.

[Paul Emery]

So George what you are saying is that a President running for re-election can, according to his inclination, stop transfer the Presidency to the apparent winner of the election without proving reasons for that. You also contend there is no Constitutional process for stopping that action and it can delay the transfer indefinably based only on the incumbents process and reasoning. Also you say that Pence did not have the authority to stop the process that Trump requested.

So if Pence would have agreed to Trumps request there would have been no time limit for resolution and indeed what would the process even be and who would decide?

I'm interested in Barry Pruett's take on this if he's available and willing.

[🐠]

I'm interested in Barry Pruett's take on this if he's available and willing.

You should pay for a couple hours of his time.

WAIT WHAT......!

[Paul Emery]

At least Barry can offer an intelligent response to the questions that George poses something yu, the fishhole seem incapable of. No wonder you won't use your real name.

[Paul Emery]

George

Another situation that could occur could involve lawsuits in individual states that could take months to resolve. If that had occurred in our current situation it would likely mean Trump would remain President till it's settled. which could take months or possibly years to sort out. Either way we would be entering into uncharted territory with no legal precedence to serve as a guide since it's never happened before.

[Scott O]

Paul 5:43 - "So George what you are saying is that..."

Here we go.

You know, Paul - you just might for once stick with what actually happened and read what other people actually write.
What if AlGore had his way and the re-counting of ballots just went on and on for months? Years maybe? What ifs have no bearing on any criminal case.

[🐠]

At least Barry can offer an intelligent response to the questions that George poses something yu, the fishhole seem incapable of.

Yu’ll have to let us know……

[Scott O]

"with no legal precedence to serve as a guide since it's never happened before."

Can't you just imagine Paul Emery in 1776?

[🐠]

Posted by: Scott O | 15 August 2023 at 07:51 PM

Can't you just imagine Paul Emery in 1776?

Probably endless whining about Benedict Fishhole not using his real name.

[🐠]

Hey…..we got any updates on William?

[George Rebane]

PaulE 543pm- First, you understood nothing of what I said in my 541pm. Second, everyone familiar with the Constitution knows that it is document neither perfect not complete. You apparently take exception. There are a lot of omissions that have been discovered over the decades, many of which have been corrected by Congress and the courts.

[Paul Emery]

George

I understand the principles you outlined but I was trying to figure out what the process would have been if VP Pence indeed would have followed Trumps instructions and halted the process on Jan 6. You offered no insights about how that would have worked and how long it would last and what the interim governance of the executive branch of government would be like during that period. You state that Pence had a "erroneous interpretation of the First Amendment" so I assume from your perspective Trump should have remained President till things were settled. You Also offer no suggestions how that process would have worked. Would it be the Courts, Legislatures of the States or the Executive Branch which would have been Trump and his cabinet or whatever he chose to be in place. You just didn't take the question far enough to discuss those things that would have to be dealt with.

[Paul Emery]

By the way Trump now faces 91 felony counts as we speak.

https://www.politico.com/news/2023/08/15/trump-georgia-charges-different-00111282

[🐠]

By the way Trump now faces 91 felony counts as we speak.

There it is…..the thing that you really wanted to talk about.

[Gregory]

It's ham sandwiches all the way down...

[Paul Emery]

Once again Gregory the fake Libertarian supports Trump who now faces 91 felony counts.

[Gregory]

The Never Libertarian Paul Emery supports the flurry of indictments against a GOP frontrunner in order to subvert the 2024 elections, worried voters might vote wrong.

The "91 felony counts" are ham sandwiches served by grand juries who only got to hear the DA's story.

I'd be concerned if I were a devout Democrat again that they could all get swept away by the Supremes clearing the table of vexatious actions meant to disrupt the 2024 election.

[Benedict Fishhole]

Posted by: Paul X | 16 August 2023 at 06:49 AM

Once again Gregory the fake Libertarian supports Trump who now faces 91 felony counts.

You need to talk to your gerontologist about your meds.....they aren't working.

[Paul Emery]

Gregory doubles down on his support for Trump in his 7:05 post. It's all a conspiracy according to him and Trump has done nothing to deserve the indictments. Biggest political loser in modern history and Gregory supports him.

[Gregory]

"It's all a conspiracy according to him and Trump has done nothing to deserve the indictments."

No, Punch. You're making shit up just to smear me, and if there was no election coming none of these charges would have been filed.

[Individual Juan]

Questions: Isn't a threat just "free speech"? All you are doing is talking.

Did Trump incite the Utah "free speech victim" Robertson to make the threats that resulted in his death?

Is Trump winding up the UltraMAGA Bots that descended on Charlottesville and DC, and those who think he is a Marvel Comic Hero?

"Robertson posted online Monday that he had heard Biden was coming to Utah and he was planning to dig out a camouflage suit and begin “cleaning the dust off the M24 sniper rifle,” a post that came after months of graphic online threats against several public figures, according to court documents. Robertson referred to himself as a “MAGA Trumper,” a reference to former President Donald Trump’s “Make America Great Again” slogan, and also posted threats against top law enforcement officials overseeing court cases against Trump."

https://www.politico.com/news/2023/08/09/utah-man-threatens-biden-fbi-killed-00110554

[Individual Prawn]

Jeez with melonheads like you and psul X fronting the "media" no wonder newspapers and other democrat marketing departments are failing at such a rapid clip.

[Scott O]

Lonesome Johnny @ 9:46 is at it again - dude, you need to wait at least until noon to start hitting the Boones Farm.

The news about the wacko in Utah has absolutely nothing to do with Trump being charged with fabricated crimes. Try to at least stay on topic.
That is if you're sober enough to remember what the topic is.

[Gregory]

https://thefederalist.com/2023/08/16/the-purpose-of-the-trump-indictments-is-to-demonstrate-the-lefts-power/

It's Mean Girls. They do it because they can. Cancel Culture writ large.

[Paul Emery]

So Gregory in your view If there was not an election Trump would still be sharing top secret intelligence documents with party folks at Mar a Lago because that was ok according to Trump.

Gregory believes trump when he says

“There doesn’t have to be a process, as I understand it,” Trump said. “You’re the president of the United States, you can declassify just by saying it’s declassified, even by thinking about it.”

https://www.politico.com/news/2022/09/21/trump-i-could-declassify-documents-by-thinking-about-it-00058212

[Gregory]

Funny you'd pick the items that Trump was absolutely correct about.

Just sticks in the craw in an elderly enlisted man, eh, Punch?

[Gregory]

Now, what aboot Quid Pro Joe's stash of classified docs stored safely in the garage with his vintage Vette parked on them?

[Paul Emery]

Gregory

He turned them over and didn't keep them like Trump did. So did Pence. Trump even lied to his own lawyers about it.

"A federal judge overseeing a legal battle between the Department of Justice and former President Donald Trump over his handling of classified documents said prosecutors have gathered enough evidence to show Trump “intentionally concealed” his knowledge of a trove of classified records from his attorneys, according to ABC News, in the latest legal blow for the ex-president as he faces a separate potential indictment in New York.

https://www.forbes.com/sites/nicholasreimann/2023/03/21/doj-thinks-trump-deceived-his-lawyers-about-classified-documents-report-says/?sh=42bb4a601313

[Paul Emery]

So Gregory believes that Trump was "absolutely Correct" when he said concerning his possession of classified documents:

“There doesn’t have to be a process, as I understand it,” Trump said. “You’re the president of the United States, you can declassify just by saying it’s declassified, even by thinking about it.”

Gregory is a solid Trumper and probably gives him money to pay his legal bills.

https://www.politico.com/news/2022/09/21/trump-i-could-declassify-documents-by-thinking-about-it-00058212

[Gregory]

Fuck you, Paul. I've never donated money to any GOP campaign. You lie again.

Quid Pro Joe illegally possessed some documents for years and the garage wasn't kept locked all the time. Unless the vette was there.

[Paul Emery]

Gregory writes:

"Funny you'd pick the items that Trump was absolutely correct about."

So Gregory you admit to believing that Trump has the ability to declassify material just by "thinking about it".

[Don Bessee]

Double standards all around -

Equality under the law what a concept -

A federal appeals court delivered a major free speech victory on Tuesday, ruling that Washington, D.C., officials “selectively” enforced a statute to arrest pro-life activists but not Black Lives Matter protesters in 2020.

In the summer of 2020, thousands of Black Lives Matter protesters flooded D.C., and over several weeks, they covered the streets, sidewalks, and storefronts with paint and chalk. While these markings violated the District’s defacement ordinance, no protesters were arrested. However, district police officers were quick to arrest two pro-life advocates in a smaller protest for chalking “Black Pre-Born Lives Matter” on a public sidewalk outside of a D.C. Planned Parenthood facility.

“The First Amendment prohibits discrimination on the basis of viewpoint irrespective of the government’s motive,” the three-judge panel ruled:

We hold the Foundation has plausibly alleged the District discriminated on the basis of viewpoint in the selective enforcement of its defacement ordinance. We therefore reverse the dismissal of the Foundation’s First Amendment claim and remand for further proceedings.

https://www.breitbart.com/politics/2023/08/16/federal-court-d-c-selectively-enforced-law-to-arrest-pro-lifers-but-not-blm-protesters/

;-)

[Gregory]

"So Gregory you admit to believing that Trump has the ability to declassify material just by "thinking about it"

Had the ability... when he was the President.

Punchy, your thinking is slower than usual.

Unlike Biden when he was VP and afterwards, when he was nothing but still had classified documents ILLEGALLY.

[Paul Emery]

Gregory

So Trump didn't have to notify anyone that something has been de-classified so that others can have access to it as they can when things are declassified after going through the current process. If it's de classified he can then share it with his friends and colleges and he wouldn't even have to notify the agencies that he had done so and they would have no way of objecting. This is especially serious when it comes to military and security material. You say he can just "think about it" and its done, No other responsibilities and that's ok with you.

[Gregory]

It isn't up to me... it's the law. All authority to handle documents based on their classification(s) is derived from the President.

That's the way it is, Punchy.

To offload occupied coffins from air transports... what security clearance did you hold?

[fishanthrope]

Why doesn't this surprise.....

WELL, THAT WOULD BE KINDA BIG, IF TRUE: Hunter Biden’s Lawyers Allege that David Weiss “Reneged” On Their Deal, Strongly Implying That Weiss Did Agree to a Secret Immunity for All Crimes, and Only Withdrew That When the Judge Started Asking Questions.

Smells like Weiss is Garland's fixer! Wonder why he was made Special Counsel?

[Paul Emery]

Gregory

Do you agree with that law, as you define i?

[Don Bessee]

What a maroon @705 its the Law not as G man defines it, thats the problem with being the ponytail of ignorance, you think its ok to have your own facts from the talking points for lefties. ROFLOL

;-)

[Scott O]

fishing with rope 7:01 - "Wonder why he was made Special Counsel?
Shit - even the lefties figured that one out.
So he could be protected from being questioned under oath.
He supposedly already had "full authority" according to Garland. So why the need to elevate him to SP? What is the need?
And what is he going to "investigate"?
He had already engineered a deal with Hunter that was supposed to wrap everything up and protect Hunter from any future prosecution.
Now, all questions about Hunter and his payoff money to the "Big Guy" can be sat on and covered up as part of "an on-going investigation".
Hunter will get his trial somewhere far off in a future where a Dem has the power to give him a full pardon.
Love to watch the American Lefties cheer on tax evasion and corruption by wealthy white men. Bet you never thought you'd see that back in the 70s.

[Gregory]

Punchy @705p

No, but i can live with it. Reality, what a concept.

[Gregory]

Anyway, Punchy... what was your security clearance when you were offloading coffins from air transports.

????

[Paul Emery]

I was an active duty Air Force Reservist at that time. I spent 6 years in the Air Force Reserves including 6 months active duty. What was your military service Gregory?

[Gregory]

Yes, Paul, and thank you for your service.

What security clearances did you have?

I'm guessing none.

[Paul Emery]

What military service did you serve Gregory before you got too fat?

[Gregory]

What security clearances did you have? If you don't answer, we'll know the USAF didn't trust you with any secret worth keeping.

Me, I got too old before I got too fat.

[Paul Emery]

Tell us about your military service Gregory. How long-what branch etc.

[Gregory]

Hmmm, I was in a brass quintet at the Fallbrook Naval Weapons Station with the commander of the base.

What clearances did you have, Punch?

[Gregory]

Now, Punchy knows full well I was never in the military 'cause I said so in this blog in the past... but he wants a moral high ground to judge the laws regarding classified material even though he apparently never had a clearance, or needed one as the caskets tended to stay where they were put.

I was cleared SECRET (hot particularly hard to get and they didn't usually trigger an FBI investigation) because I needed access to SECRET shit to do my job for the Huges Aircrash Company, the maker of stuff to hang off of F-14 Tomcats to help keep aircraft carriers floating for the first few hours of WWIII.

[🐠]

Posted by: Gregory | 18 August 2023 at 12:22 PM

Expect a stern ”So Gregory you think it’s okay…..” followed by a breathless recounting of the most recent Trump outrage of the day.

[Barry Pruett]

https://x.com/barrypruett/status/1695518157757440178?s=46&t=yVTLbn3iDga5pF8jzI7fCA

Trump gettin the street cred vote.