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> Similarly, if POTUS calls for war against a specific nation (or group), it is within his rights to do that, no matter how violent or deadly war may be. Calli

by danans 6y ago

> Similarly, if POTUS calls for war against a specific nation (or group), it is within his rights to do that, no matter how violent or deadly war may be. Calling for war against a foreign adversary, yes. But for violence against domestic protesters - not clear that Brandenburg v Ohio protects that, regardless of whether the violence is lawful, and to what degree it is lawful. The use of violence by public officials is not a blanket right, and courts will likely consider the types of situation where particular levels of violence are legal or not. Also, there are specific legal prohibitions against using the military against domestic targets, which is one of the things Mattis was so incensed about in the photo op incident. The administration would like to claim they have the option of the Insurrection Act, which will again have to be tested in courts. Calling protests insurrection, even those that commit vandalism, is false on its face.

bhupy 6y ago
> The administration would like to claim they have the option of the Insurrection Act, which will again have to be tested in courts. Calling protests insurrection, even those that commit vandalism, is false on its face. We're not talking about classifying anything as "insurrection" here. Given the context of the tweet in question, we are strictly talking about vandalism and trespassing, and we're talking about classifying it as "obstruction of the law", which is explicitly carved out in the text of the Insurrection Act. I'm not sure if you can make a strong case that vandalism and trespassing are NOT an obstruction of the law. If a mid-20th century Arkansas school refusing to desegregate can be considered an obstruction of the law, so too can vandalism/trespassing. The POTUS declaring the intent to call on the legislature to approve the Insurrection Act against those that are objectively obstructing the law is protected by the Constitution, and you'd have to really stretch yourself to suggest that this fails the imminent lawless action test. And this is also all assuming that POTUS is talking about using the military. He could also be talking about just calling on the police force to just enforce the existing laws. The statement is vague enough that it's legal on its face, but even in the non-charitable interpretation pretty clearly fails the Brandenburg test.

by danans 6y ago

bhupy 6y ago

> The administration would like to claim they have the option of the Insurrection Act, which will again have to be tested in courts. Calling protests insurrection, even those that commit vandalism, is false on its face. We're not talking about classifying anything as "insurrection" here. Given the context of the tweet in question, we are strictly talking about vandalism and trespassing, and we're talking about classifying it as "obstruction of the law", which is explicitly carved out in the text of the Insurrection Act. I'm not sure if you can make a strong case that vandalism and trespassing are NOT an obstruction of the law. If a mid-20th century Arkansas school refusing to desegregate can be considered an obstruction of the law, so too can vandalism/trespassing. The POTUS declaring the intent to call on the legislature to approve the Insurrection Act against those that are objectively obstructing the law is protected by the Constitution, and you'd have to really stretch yourself to suggest that this fails the imminent lawless action test. And this is also all assuming that POTUS is talking about using the military. He could also be talking about just calling on the police force to just enforce the existing laws. The statement is vague enough that it's legal on its face, but even in the non-charitable interpretation pretty clearly fails the Brandenburg test.