Preface: I believe it ought to be illegal to make encouraging threats against law enforcement on Youtube regardless of what any document or Supreme Court verdict opinion says. Screw all that.

I am neither a lawyer nor did not sleep at a Holiday Inn Express last night, but I did take Constitutional Law at a party school, so here’s my verdict regarding the state of Georgia arresting this angry black woman who made a youtube video declaring, while waving around a pistol, open season against cops.

The closest Georgian law I can find is Title 16, Section 16-11-37 which does not seem to prohibit what she did in her video, and that she was perhaps arrested in order only to conduct a perp walk. A perp walk is the term for when cops or DAs tell the media to show up with cameras rolling when they trot out a suspect in cuffs, which parenthetically I personally don’t think is usually appropriate or even “American” in that it clashes with innocent until proven guilty, that anyone can be arrested easily and that showing up on the news wearing cuffs can ruin one’s life and prejudice a jury.

Regarding decisions and opinions of the federal Supreme Court related to limitations of free speech with respect to such criminal and terroristic threat laws, I believe the two relevant cases are Watts and Elonis. In Watts, the Court makes a distinction between “true” threats and political hyperbole. This lady’s video strikes me as obvious political hyperbole; reasonable cops would not fear that she would actually go outside to unload some magazines (not clips). Though maybe there is a weapons charge here – I don’t know why she was arrested.

In Elonis, a more recent SCOTUS decision, the bar of whether or not such laws are constitutional at whether a “reasonable” person would interpret threats made across state lines.

Now, how to reconcile the Court’s decisions to limit free speech with the First Amendment which guarantees Youtube freedom, the Court can indeed does do whatever it wants, though state judges may thumb their noses at Court decisions which can launch a local case to provoke the federal Supreme Court to revisit the precedent they had set, possibly resulting in their effectively overturning their previous decisions (and therefore what people call the law of the land even though it’s just another case and not a law), letting a guilty verdict against this Youtuber stand were it a free speech case and not something like illegal weapons possession.

Though, given the political climate, I doubt the Georgia district attorney (or a federal one) will opt to prosecute, and just wanted a perp walk. But that could make Georgia and its taxpayers vulnerable to an unlawful arrest lawsuit in which this woman could rake in some serious cash money.

While I truly don’t care for the black lives matter movement; but if I’m right here, I think what the state has already done to her with the perp walk and questionable arrest is more wrong than what she did to Georgia and to the United States.

Doug Simmons

7 COMMENTS

  1. Seems pretty unambiguous to me, David:

    Congress shall make no law .. abridging the freedom of speech…

    Regarding Supreme Court and lawmen whatever else you think can contradict that, note the Supremacy Clause, right in the “kernel” of the operating system of our government:

    This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

    For good measure, if you’re not satisfied that the federal constitution extends to the states, here it is again in the Georgia state constitution, right up toward the top:

    No law shall be passed to curtail or restrain the freedom of speech or of the press.

    Now, I happen to agree with you, this should be illegal and inciting violence is sometimes a bad thing; but not from a legal or academic perspective, rather out of common sense.

  2. ​Makes me wonder happen next week and the week after if right now, today, we did away with the Bill of Rights, the rest of the Constitution, state constitutions and the concept of supreme courts’ precedents governing everything.

  3. You can’t yell”there’s a fire” in a crowd when there isn’t. The argument your making is the one every group makes when they don’t like the ruling from the Court (be it Roe or Bush v Gore) . Bottom line is that there’s a ton of precedent here. Freedom of speech doesn’t let you cause harm to others.

  4. I don’t care how much precedent there is to create your bottom lines. The Supreme Court does not make laws of the land; and anything they or any state does to contradict the Constitution is nullified by the Constitution.

    And by the way, the falsely yelling fire thing, that’s not even a Supreme Court precedent let alone a law, rather it was a metaphor a justice employed in a case about someone distributing flyers opposing the draft in World War One.

    So there is precedent for the WWI draft phamphletting (I hate all forms of pamphleting and think it should be illegal), but all you have is a metaphor based on someone’s action on which that very justice not one year later reversed his opinion, using the world silly.

    But as I said, no one cares about all this, it’s just academic. You say hate speech and inciteful in an uninformed sense dismissing valid legal arguments because many people identify them as such for whatever purpose, I say unhelpful but legal in an American sense; either way, let’s lock her up and parade her in front of the cameras in cuffs.

    I happen to be a big fan of abortion (yay!) but a strong opponent of Roe because it’s bullshit in a legal and constitutional sense, even in the senses of the Supreme Court’s own protocol not to make advisory opinions with moot cases over political questions, to name three major flaws of the ruling. But it will likely stick around without need to buttress it with a better-thought-out Roe 2.0 case because most Americans don’t know or care about any of this.

    All that said, let’s keep our distance from how the Chinese operate with respect to speech and censorship.

  5. In a mall, but you think there should be no limits on speech? I should be able to tell stories about Doug Simmons just to harm you, knowing they are false? I should be able to gather a crowd to start violence? What if I tell the Russians our national secrets?
    Bottom line is that there have to be laws against unlimited speech.

  6. Again, I’m on your side, but out of common sense and not trying to reconcile the positions with Supreme Court cases. Whereas you are all over the map, going on about the Supreme Court and cinematic arson and libel and espionage, needing laws (of course we need such laws), but the notion of a court effectively legislating should strike you as more objectionable than free speech in some theater running amok.

    That the language Supremacy Clause of the Bill of Rights and the First Amendment could not be more explicit: “No law.”

    One quote from a concurring opinion in your case that I think is relevant: “Though I doubt if the ‘clear and present danger’ test is congenial to the First Amendment in time of a declared war, I am certain it is not reconcilable with the First Amendment in days of peace.

    The bottom line, David, is that the First Amendment was not very well thought out and should be disregarded so that we can have a merry nation without having to go through the impossible schlep of amending it.

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