Are we any closer, after Springfield, to meeting the Brandenburg standard when accusing Trump and Vance of inciting violence? Josh and I argue about it on this week’s Serious Trouble, dropping tomorrow.
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Serious question: does it matter? Wouldn't this Supreme Court simply change the test if there were any possibility of it being used to prosecute Trump?
I hate that this (hate crime/lynching) is even a possibility, but they seem to be intent on pushing this to the brink. And if someone takes the bait, they will immediately mobilize to blame it on the Democrats, as they always do.
Yes but he was found guilty of sexual assault in a civil court. Maybe I'm wrong but to us non-lawyers that seems like a distinction without a difference.
He has been "found liable for" rape. Guilt is for criminal cases, liability for civil cases. (IANAL but went through this back when it first happened.) The real question is, is the fact that he has been found liable for rape enough to call him a rapist?
There’s a large difference. Civil courts don’t determine guilt. The burden of proof in a civil case is a preponderance of the evidence- that it was more likely than not the defendant did the thing the plaintiff accuses them of. That’s a much lower burden than in a criminal case, where it’s beyond…
… a reasonable doubt. Accordingly, the penalties that can be assigned by a court in a civil case are much less serious- typically financial- than those in a criminal case, which can potentially involve a loss of life and liberty. He was found liable for rape. He’s a rapist, but not a convicted one.
(Not criminally charged)
(Found liable in a civil court)
Calling him a rapist is going to be protected under substantial truth, because he's a fucking rapist.
I may have missed it, but have you done any commentary about whether Vance and Trumps statements regarding the people in Springfield could constitute defamation? "Haitian's are butchering peoples pets" and "They are illegal immigrants" are both false statements of fact. I realize that defamation /1
needs to be individualized. Like you can't defame a group, but here it seems at least close to individualized.
Where is the line really? If I falsely sat X,Y,Z are criminals, vs. This family are criminals, vs This is a criminal neighborhood. What is the analysis that says this is a viable claim?
Generally group defamation is not a thing. The group has to be small enough that the statement can be understood to necessarily refer to specific people, like “people who like JD Vance.”
My view is the Springfield stuff doesn't get there, but Jan 6 did and the possibility of charging on that basis (along with the others) was underrated.
Possibly a dumb question, but does anyone ever get charged with incitement in the absence of a resulting significant act of violence? Or do we have to wait for someone to open fire first?
..does this chat include the basics of the Brandenburg standard for, uh, dummies like me that don't know what the Brandenburg standard is?
(Either way I'll listen I may just have to read more info first to understand)
The Brandenburg standard, from the Supreme Court case Brandenburg v. Ohio, says that “incitement” is only outside of First Amendment protection when it is intended and likely to cause imminent lawless action.
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"No"
(Found liable in a civil court)
Calling him a rapist is going to be protected under substantial truth, because he's a fucking rapist.
Where is the line really? If I falsely sat X,Y,Z are criminals, vs. This family are criminals, vs This is a criminal neighborhood. What is the analysis that says this is a viable claim?
Given how they are now timing the newest drops of horrible tings for right after you record, I'm a bit terrified.
(Either way I'll listen I may just have to read more info first to understand)