Originally posted at the Weekly Standard.
Something ugly is happening to the First Amendment. It is being contorted to enable judges to protest Donald Trump’s presidency. The perennial impulse of judges to manipulate the law to achieve morally and politically desirable ends has only been exacerbated by the felt necessity to “resist” Trump. The result: Legal tests concerning the freedoms of speech and religion that in some cases were already highly dubious are being further deformed and twisted.
Welcome to the rise of fake law. Just as fake news spreads ideologically motivated misinformation with a newsy veneer, fake law brings us judicial posturing, virtue signaling, and opinionating masquerading as jurisprudence. And just as fake news augurs the end of authoritative reporting, fake law portends the diminution of law’s legitimacy and the warping of judges’ self-understanding of their constitutional role.
Those who try to police the relentlessly transformational projects of constitutional progressives had much to dread from the Obama administration, an inveterate ally of the legal left that did what it could to graft the aspirations of progressives onto the Constitution. But Trump’s presidency may be even worse, because too many judges now feel called to “resist” Trump and all his works—no matter the cost to the law’s authority and to the integrity of the judicial role.
In one recent deformation, Trump was sued for incitement to riot and assault and battery when, at a campaign rally before he became president, he said “Get ’em out of here” in response to protesters in the audience. Several of these protesters were subsequently pushed and struck by others in the crowd. A Kentucky federal district judge ruled that the case against Trump could proceed because “Get ’em out of here” could reasonably be interpreted as an exhortation to attack the protesters.
The most astonishing part is the court’s conclusion that the statement is not protected by the speech clause of the First Amendment because it is plausible to think Trump was inciting a riot. Though the court cites the highly speech-protective test from Brandenburg v. Ohio, in which the Supreme Court held that the freedom of speech does not permit the government “to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action,” it mangles it. What part of “Get ’em out of here” could plausibly be interpreted as advocating illegal activity, rather than a call for the assistance of security officers? Where is the explicit advocacy of illegality?
Brandenburg involved a KKK member advocating on film the possibility of “revengeance” against African Americans and Jews, along with other hateful speech. In an earlier case, Terminiello v. City of Chicago, a rabble-rousing priest whipped up an angry throng to confront an enraged mob, shouting: “[T]here will be violence. . . . We will not be tolerant of that mob out there. . . . We are going to stand up and dare them to smear us. . . . We don’t want them here; we want them to go back to where they came from.” In both cases, the Supreme Court held that these words were constitutionally protected free speech. Neither what Trump said nor the context of his speech is even in the same universe.
And yet this district court found a way to rule that the president of the United States might be deposed on the question of incitement to criminal violence because Trump had on some other occasions “condoned violence,” and because had Trump actually wanted the assistance of security officers to remove the protesters, “Trump would have instructed the intervening audience members to stop what they were doing.”
It is not possible to explain this jaw-dropping ruling—one that flies in the face of binding Supreme Court precedent—without reference to extra-legal factors: the desire to embarrass the president, for example, or to create mischief for him, or to signal opposition to him. That Trump had previously “condoned violence” is irrelevant to whether he incited a riot at this rally. It is highly relevant, however, if one’s purpose is grandstanding to injure a political opponent.
An even more appalling specimen of fake law has been generated by Trump’s executive order restricting entry into the country by nationals of six foreign countries for 90 days and suspending refugee admission for 120 days. In one court order, a Hawaii federal district judge rejected the government’s claim that the six nations posed special security threats (on this, the Trump and Obama administrations are aligned) and concluded that the order violated the establishment clause. Relying principally on obscure dicta from Justice David Souter’s opinion for the Supreme Court in McCreary County v. ACLU (2005), the court held that the “unique,” “remarkable” “historical context” of the order, “full of religious animus, invective, and obvious pretext,” tainted it with anti-Muslim bias and therefore evidenced a purpose to make a law respecting an establishment of religion.
Read more at the Weekly Standard.