The Big Unconstitutional Lie
The First Amendment is not a license to undermine the foundation of the U.S. government, just as it is not a right to undermine our system of jurisprudence. Creative legal thinking can stop Trump's Big Unconstitutional Lie. Innovative legal action and amendments to the Electoral Count Act could put an end to Trump's relentless disinformation campaign on the "Big Lie."
The First Amendment to the United States Constitution provides that, “Congress shall make no law ... abridging the freedom of speech, or of the press.” Despite First Amendment Constitutional protections there are legally established limits to free speech in the United States. My premise is that Donald Trump, a powerful and influential man, has violated those limits and is guilty of sedition as well as other Federal crimes as are now being identified by the House Select Committee on January 6, 2021. Since the 2020 election and continuing to this day, Trump has been on a relentless rampage at rallies, interviews, speeches and any venue available, to spread lies and misinformation on how the elections were rigged and stolen from him by various corrupt means. He still claims he actually won the election. He has been steadfast in his refusal to concede. Until Trump; concession by the losing Presidential candidate had become the traditionalistic symbol of American democracy and the customary prerequisite to the peaceful transition of political power.
For this discussion it is also important to draw some differentiation between two distinct time frames. One, from pre-election 2020 until the official transfer of power on January 20, 2021; and two, from January 20, 2021 until now. The major distinction is that there are legal differences and different prosecutorial options regarding crimes and malfeasance that occured while Trump was still the official President of the United States. The investigations of the House Select Committee are specifically focused on the time period when Trump was President.
The January 6th House Select Committee is zeroing in on the facts surrounding the 187 minutes (3 hours, 7 minutes) while Donald Trump watched the attack on the U.S. Capitol which was intended to violently overturn the results of the election of the President of the United States of America. It is becoming very clear by the numbers of persons who contacted Trump and requested him to call off the attack that Donald Trump had the ability to stop the brutal and deadly assault -- but he did not. His involvement in the planning and carrying out of the insurrection and his refusal to stop the onslaught and the crimes he is guilty of will become clear in time. However, it is critically important that we do not lose sight of the fact that this same man who participated and oversaw this heinous crime against the United States is still on the loose. Now, as a private citizen he is freely peddling his lies and propaganda with the same intent -- to gain control of the country through illegal means.
This article deals primarily with Trump as an ex-President; the time period after Joe Biden became the official President. It is the period following all of the 2020 election drama, confusion, uncertainty and the many Trump-instigated legal and rhetorical challenges to the election. Following the January 6th insurrection, the January 20 transfer of power and the emergence credible facts and evidence Trump simply doubled down on his Big Lie.
I draw this distinction because I am concerned about Trump's activity as a private citizen. This is when he began his official refusal to honor the traditional symbol of American democracy in the peaceful concession and transfer of power. Following the inauguration and swearing in of the new President he continued his tyrannical, unfounded claims designed to spread groundless, fallacious lies and misinformation about the 2020 election. His actions as a private citizen incited significant unrest among the electorate causing doubt and uncertainty in the integrity of the American system of elections -- the very foundation of democracy.
The actions of the twice impeached ex-President while he was in office were odious in their own right, however, his persistent and relentless actions as a private citizen have undermined the foundation of American democracy. He is not an insignificant individual -- he is an assumed billionaire with extensive resources; an ex-President; an individual who received 74 million popular votes; an individual who incited an insurrection on the U.S. government; the de facto leader of the Republican party; and an individual with considerable influence, connections and oratory skills. It is not an overstatement to say that this man who has mesmerized, captivated, riveted and altered the behavior of an entire political generation has the wherewithal to threaten the underpinnings of the democracy.
At this point, it is important to reflect on the incredible, prophetic wisdom and warning of the very first President of the United States, George Washington in his farewell address to the country following eight years in the leadership of a new nation in 1796, 225 years ago:
Let me now take a more comprehensive view, and warn you in the most solemn manner against the baneful effects of the spirit of party generally. . . This spirit, unfortunately, is inseparable from our nature, having its root in the strongest passions of the human mind. . . The alternate domination of one faction over another, sharpened by the spirit of revenge. . . The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of public liberty. [emphasis added]
What
Is Trump's Intent?
It
may be good to reflect for a minute about what Trump was doing and
saying following the election and up to his
speech from
the Ellipse, near the White House on
January 6, 2021, that incited the assault on the U.S. Capitol. I say
this because it is important to establish his intent. What did Donald
Trump intend to happen by all of his actions? His actions, including
telephone calls, planning, speeches and directed legal activities and
involvements were designed to invalidate and alter the results of
what nearly all objective observers agreed was a free and fair
election. The intent of the rally speech by Trump and his compatriots
at the Ellipse was to convince the thousands of protesters, beyond a
doubt, that the election was rigged. The mantra of lies, the
drumbeat of malicious false statements of material
facts were intended to mislead and incite them into
actions which predictably
turned
violent and resulted in an insurrection. Trump's words are not
obscure or concealed:
"All of us here today do not want to see our election victory stolen by emboldened radical-left Democrats, which is what they're doing. And stolen by the fake news media. That's what they've done and what they're doing. We will never give up, we will never concede. It doesn't happen. You don't concede when there's theft involved.
"Our country has had enough. We will not take it anymore and that's what this is all about. And to use a favorite term that all of you people really came up with: We will stop the steal. Today I will lay out just some of the evidence proving that we won this election and we won it by a landslide. This was not a close election." [https://tinyurl.com/mry4w7sp]
The intent of the January 6th insurrection incited by leader Trump, was to stop the legally required counting and approval of the electoral votes and to retain Trump as the illegal President of the United States. Donald Trump's intent was to incite the protesters to take whatever actions necessary to retain him illegally as President. He may not have known exactly what the incited, angry mob of thousands of protestors might do, but mob mentality and mob violence are rarely predictable. His intent was clearly to incite the protestors to attempt to stop or alter a required legal governmental function. There could hardly be a more clear example of sedition -- the organization and incitement that tends toward rebellion or insurrection against the established order of lawful authority.
Now, over a year after the legal and official transfer of power on January 20, 2021, we must ask, "What is Donald Trump's Intention Now?" A year after the election results have been certified by the individual state Secretaries of State & Governors, voted by the Electors, certified by Vice President Pence, the Senate and the House of Representatives, subjected to numerous state audits and third-party audits, at least 63 lawsuits filed and lost by Trump and others (including three Supreme Court reviews), and even a review by the former U.S. Attorney General Bill Barr. It should also be emphasized that in the same 2020 elections that Trump is contesting 35 Senators, 435 House Members and 11 Governors were elected throughout the U.S., none of whom are claiming the elections were corrupt or rigged.
With evidence and proof now compiled, "beyond a reasonable doubt" (the highest legal standard) that there was no widespread corruption or irregularities of the 2020 national election for President, it seems clear that Donald Trump is intent, obsessed even, with becoming an illegal President and disrupting the legal framework of the American democratic republic and our system of laws and government. By holding rallies around the country he continues to incite large numbers of the general voting public to take whatever actions necessary to have him proclaimed the illegal President of the United States. Just as he desired to be the illegal President on January 6, 2021, his desires have not changed. Despite the evidence and proof, Trump is insistent on instilling doubt in the validity of the 2020 Presidential election to undermine public confidence in its results.
With
his continued insistence that the 2020 election was corrupt, rigged
and stolen from him, we can only assume that he is well aware of the
overwhelming preponderance of universally accepted evidence and
yet he continues his reckless disregard for that truth. His absolute
refusal to accept the reality of his loss and concede to Joe Biden
reveals that he still wants to perpetuate the belief that he won the
election. His intention is to convince the public of that falsehood
and to continue to reject the Constitutionally and legally
prescribed election processes of the states and country. His
intention is to incite
people (masses of people) to believe his Big Lie and rebel against
the government or governing authority. That is why, after
his solid defeat, he continues holding rallies around the
country to spread his propaganda. No other President in the history
of the United States has categorically refused to concede defeat
to a duly elected and inaugurated President over one year following
the election.
What
Is Trump Saying?
Trump,
a man with a peppered history of many, many, smaller lies,
began spewing his public Bigger Lies when he claimed for years that
Barack Obama was not an American. Then, after he actually won
the 2016 election, he was not satisfied with the fact that he
lost the popular vote by nearly 3 million votes. So he began his
spiel that millions of illegal aliens had corrupted the vote count
and the 2017 inauguration was the biggest ever
(which it wasn't).
Before the votes were even counted in 2020, Trump had declared he was
the winner and then from election night through the January 6, 2021
insurrection and finally following the inauguration of President Joe
Biden, he continued to perpetuate every lie that he or his
followers could think of to declare a Trump victory.
After refusing to concede, and unlike any ex-President before him, he has launched a denial campaign in venues around the country to continue his incessant, unrelenting lying about how the election was corrupt, rigged and stolen from him. Through all his lies there is a common thread -- there is never any proof of his allegations no matter how often they are repeated or how often they are investigated -- they are just lies and the important point is that he knows they are lies.
According
to the
experts on sociopathic lying:
A sociopath is someone who lacks empathy and does not think, live or behave following commonly-accepted social norms and morality. Someone who lies, cheats, and steals, for instance, might be indicted as a sociopath... The term "sociopath" is also often used to describe someone who is extremely manipulative, cunning, and charming, and is often associated with Narcissistic Personality Disorder (NPD), which is similarly characterized by being charming, manipulative, and self-focused... Both Antisocial Personality Disorder (APD) and NPD have been linked to sociopathic behavior, and it is easy to confuse the two. People with both disorders are prone to lying, cheating, and manipulating to get what they want.
It seems clear that Trump falls within this realm of personality disorder. Seriously, can anyone believe Donald Trump does not know or understand the truth? Only the criminally insane could claim such a defense. So with that knowledge, Trump, a popular national figure, has with malice, purveyed known falsehoods with reckless disregard of the truth. Those utterances have serious consequences and do not enjoy constitutional protection under the First Amendment.
While we often hear media reports that Trump continues to say the election was stolen, we rarely get a feeling for the details and depth of the lies and misinformation and the passion by which he delivers it. No other ex-President has ever held numerous nationwide rallies to denigrate his opponent and denounce the election that elected him. Trump is continuing his rants to the public through rallies, interviews, right-wing reporting and TV coverage even now -- over a year following the election. There is no reason to believe that he will not continue this knowing and reckless disregard for the truth for the next three years.
In many respects much of the public has grown numb and desensitized to this repeated harsh rhetoric. It is important to not forget Donald Trump's intent and his unrelenting drive to achieve his fanatical, obsessive dream of ultimate control. As a reminder and just one example, I have included an extensive excerpted litany of the lies, falsehoods, and the inciting nature of his propaganda from a recent Trump rally held in Des Moines, Iowa on October 9, 2021, (An hour and 41 minutes rant). It is estimated that there were around 20,000 in attendance. I have edited the transcript for just the election and voting comments. The rest of the transcript is laced with lies and misinformation as well. Those comments, however distasteful, would almost certainly receive First Amendment freedom of speech exemptions because they would be considered as simply campaign rhetoric subject to opinion. The election and voting comments, however, because of their seditious nature and proven falsehood, should qualify as special, narrow exemptions to the sacred concept of freedom of speech. Trump said:
Trump Lies Never Stop
Rant: 11 months following the election
"The election was rigged. . . You have to fight. Bring our country back. . . It’s a corrupt elections bill. . . like the elections aren’t bad enough and corrupt enough. . . I never conceded. Never. Never conceded. No reason to concede. . . when you hear these numbers of swing states, there was no reason to concede. They shouldn’t have conceded. They did the honest thing, attacking our country. . .
That’s because it’s fake news. They are the enemy of the people. . . I think this is going to be a communist country. We’re not letting it happen. . . They [the media] are sick people and they’re really hurting our country. . . the media is corrupt. . . the elections are totally corrupt in our country. They have been for a long time. But never like they were this last time. . .
All of these calamities are the direct, predictable and disastrous consequence of a totally corrupt election. It’s all because of the corrupt election. They rigged the election. And now based on the rigged election, they’re destroying our country. That’s not a mandate. That’s a destruction of our country. Remember this, it’s not about me being robbed of an election. This is about the American people, having their country taken away from them.
That’s what it’s really about."
(The audience shouts "Trump won, Trump won, Trump won, Trump won, Trump won." & Trump responds, "We did, We did.")
"Arizona forensic audit. . .massive irregularities. . . 284,412 ballot images were... corrupt or missing. . . auditors discovered that millions of the election related files, the files were deleted during and after the election, in violation of federal law.
"DeKalb County, Georgia, that violated the chain of custody rules, 43,000 [votes]. . . I needed 11,779 votes, and they have 40,000 here and 20,000 here. In Pennsylvania, they were reportedly hundreds of thousands of more votes than there were voters. . . "In Michigan, the legislature found that over 300,000 people were listed on the voter rolls, even though they hadn’t voted in over 20 years. Oh, and again, in Detroit, which is known as the single most corrupt election venue in the country. . .
This election was rigged. They said that. This election was rigged.
. . .we must pass a complete overhaul of our entire election system to ensure it’s free, fair, honest, and able to be fully and quickly audited.
They’re destroying our country. As bad as that is, the single biggest issue. . . is talking about the election fraud of 2020 Presidential election. Nobody’s ever seen anything like it. . . we did far better in 2020 than we did in 2016. It was a rigged election. . . I got almost 75,000,000, probably I got 85,000,000 but who the hell knows?
But they called it the big lie. But the big lie turned out to be the corrupt election itself. . . there’s so much evidence, it’s pouring out of our ears. We’ve never had so much evidence. . . the people of this country, whether it’s Arizona or Georgia, or Wisconsin or Philadelphia, Pennsylvania, and if you look at all of Michigan and others, the people get it more so than the politicians.
Links to other recent rally speeches including Arizona & Texas in 2022 (It actually gets much worse!)
Sedition & Freedom of Speech
Sedition means: words or speech that incite people to rebel against the government or governing authority. Words that inspire a revolution that overthrows the government are an example of sedition. Organized incitement of rebellion or civil disorder against authority or the state, usually by speech or writing.
Sedition is a concept that cannot be taken lightly. On one hand it can be a serious crime against the government. On the other hand it can easily be misused as a threat to those who think differently than the existing authorities or governing leaders. The principles of sedition, treason and freedom of speech are closely intertwined.
As explained in a UCLA Law Review:
"The roots of seditious libel lie in the English crime of treason, which punished overt acts 'against the person or government of the King,' such as plotting his death, declaring war on him, or aiding his enemies. . .
[In the United States] . . . the rationale for punishing seditious libel in the early Republic was identical to that in England — that is, punishment was necessary to maintain the status and honor of lawmakers and the stability of the nation. Such reasoning turned the Act into a powerful political tool in the hands of Federalist officials who silenced speech critical of the incumbent administration. Many soon came to understand the Sedition Act as a misguided exercise of power. . . In 1964 [Supreme Court decision], New York Times v. Sullivan finally pronounced seditious libel 'inconsistent with the First Amendment.' . . .The Court thus concluded that the combination of factual error and defamatory content alone was insufficient to 'remove the constitutional shield' from speech about public officials." See: Lies, Honor, and the Government’s Good Name: Seditious Libel and the Stolen Valor Act, March 2012, https://tinyurl.com/2p8bf4vy
Over the years the courts have narrowed and further narrowed the types of speech and writings that do not receive First Amendment, freedom of speech protections. Although different scholars view unprotected speech in different ways, there are basically nine categories: Obscenity; Fighting words; Defamation (including libel and slander); Child pornography; Perjury; Blackmail; Incitement to imminent lawless action; True threats; Solicitations to commit crimes. Some experts also would add treason, if committed verbally, to that list. Plagiarism of copyrighted material is also not protected. See Freedom Forum Institute, https://tinyurl.com/5n6nrpksIn an interesting article in the Ohio State Law Journal, Rescuing Our Democracy by Rethinking New YorkTimes Co. v. Sullivan, David A. Logan explores the problems of lies and misinformation in our society in light of Court rulings to protect freedom of speech and honor the First Amendment. He indicates:
"Our democracy is in trouble, awash in an unprecedented number of lies— some spewed by foreign enemies targeting our electoral processes, others promoted by our leaders, and millions upon millions spread by shadowy sources on the internet and, especially, via social media. Chief Justice John Roberts recently warned that '[i]n our age . . . social media can instantly spread rumor and false information on a grand scale,' causing harm to our democracy. The internet has become our 'public square,' something beyond the imagination of the Supreme Court when it issued its groundbreaking 1964 decision in New York Times Co. v. Sullivan. . .
"New York Times defanged defamation law, recognizing that our democracy needs to protect even speech that is false. But with more than half a century of perspective, it is now clear that the Court’s constraints on defamation law have facilitated a miasma of misinformation that harms democracy by making it more difficult for citizens to become informed voters. The time has come to ask a once heretical question: “What if New York Times got it wrong?”
As
Logan indicates, the Courts have gone to extremes to "protect
even speech that is false." False
statements, even deliberate lies, against the government may be
protected (See New York
Times). While
some "seditious libel" may be able to be punished,
political statements are likely protected.
While
the Courts are extremely cautious in limiting freedom of speech (as
they should be), as discussed above they have over the years carved
out narrow exceptions where it makes sense to limit freedom of
speech. Considering the unique nature of Donald Trump and his
presence on the American political scene, I would like to suggest a
new, specific exception to freedom of speech and suggest a legal
rationale for that exception.
I
would draw a similarity to the exception made for perjury. In
the freedom of speech Supreme Court case of U.S.
v. Alvarez, No.
11–210. Argued February 22, 2012—Decided June 28, 2012, Justice
Kennedy in the plurality opinion discusses perjury as a First
Amendment issue and indicates, "As
for perjury statutes, perjured statements lack First Amendment
protection not simply because they are false, but because perjury
undermines the function and province of the law and threatens the
integrity of judgments."
He cites United
States v. Dunnigan,
507 U. S. 87, 97 (1993), “To uphold the integrity of our trial
system . . . the constitutionality of perjury statutes is
unquestioned”.
The
Justices indicate that perjury statutes are at the foundation of our
system of laws and thus take on extreme importance in relation to the
concept of free speech. It is essential that witnesses under
oath tell the truth, the whole truth and nothing but the truth or be
appropriately punished for not doing so. Otherwise our legal and
judicial system of laws and government would collapse.
Likewise
one could argue that the act of voting and
the results of that voting is the centerpiece of American
democracy and
government. False
statements about the conduct and results of the nation's elections,
made doggedly by an influential individual with reckless disregard of
the truth, are likely to interfere with the public
confidence in the electoral system and could undermine the function
of government and threaten the integrity of elections. Therefore such
statements should not enjoy First Amendment protection.
There
should be a specific statute that prohibits the transmission,
distribution and utterance of such false statements which are
contrary to the finalized and legally approved results of the
national electoral process of the United States.
In
the meantime, it
seems that there is sufficient legal precedent within Supreme
Court decisions and precedents for the Department of Justice or some
other body to bring a First Amendment challenge to Donald
Trump's persistent lying and reckless, malicious and seditious
attacks on the government and his dissemination of knowingly false
information of the results of the 2020 Presidential election (the
so-called "Big Lie").
On
one hand it seems there would be legal justification for a challenge
to anyone who
engaged in such activities or actions; while on the other hand, it
would seem blatantly obvious if such activities or actions were
carried out by a former candidate or defeated President of the United
States or persons holding or previously holding Executive or
Congressional office.
The
January 6th
Select Committee of
the House of Representatives has already found...
The claims regarding the 2020 election results were advanced and amplified in the weeks leading up to the January 6 assault, even after courts across the country had resoundingly rejected Trump campaign lawsuits claiming election fraud and misconduct, and after all States had certified the election results. As part of this effort, Mr. Trump and his associates spread false information about, and cast doubts on, the elections in Arizona, Pennsylvania, Michigan, and Georgia, among other states, and pressed Federal, State, and local officials to use their authorities to challenge the election results.
As indicated previously, Trump has continued to this day in his efforts to spread false information and cast doubts on the election results in an attempt to undermine confidence in the election and the government of the United States.
#VotingRightsIsSolution
EPILOG
Electoral College Results for 2020 are finally deposited in the National Archives on January 6, 2022. Thereafter, lying with malice or reckless disregard for truth about the results should be considered criminal & subject to fines and penalties. Penalties should be extreme for Public Officials & Public Figures who must bear responsibility for peddling known lies that undermine the integrity and confidence of the American electoral system and the democracy itself.
"Supreme Court jurisprudence has long established that certain categories of low-value speech are outside the realm of First Amendment protection. Obscenity, defamation, incitement, and fraud have historically been considered by the Court as unworthy of First Amendment protection. Deceptive election speech regarding voting is fraudulent and therefore unprotected. . . The distinguishing element between false statements which are protected and those which are unprotected is the existence of a malicious intent [citing US v. Alvarez (2012)]. The Court has steadfastly held that when an individual communicates a false statement of fact about a matter of public concern, the speaker can be held to account only upon a showing of intent; this avoids the risk of punishing innocent mistakes [citing New York Times Co. v. Sullivan (1964)]. . . To hold a person accountable under the model law [proposed by the Lawyers’ Committee], the complainant must show that the defendant made a false representation of a material fact knowing that the representation was false and demonstrate that the defendant made the representation with the intent to mislead the audience [citing Illinois ex rel. Madigan v. Telemarketing Assocs., 538 U.S. 600 (2003)].
As indicated above, the reason we must be insistent on regulating Donald Trump's Big Lie or other similar lies now or in the future, is to maintain and preserve the integrity and confidence of the American electoral system and the democracy itself.1. The Truth: Logging results in the National Archives defines the final, hard truth. This act defines the end of the Electoral College process which is defined in the Constitution and law and is subjected to a year long public inspection opportunity following the January 6th Joint Session of Congress to officially and finally count the electoral votes. The process involves many individuals and is performed on a strict timeline that is set in law. No individual, agency or political entity controls the process.2. The Arbiter: Likewise, the final, hard truth is not defined by any state or federal government, individual, agency or political entity. Instead, the final electoral vote count is established by an elaborate and complex United States electoral system and process that consists of the electoral population; multiple state agencies and officials; many private and legal counters, inspectors, reviewers and observers; and the Electoral College process (above) and further reviews by state government and private entity audits and public inspections and legal investigations and reviews of the results of over approximately a year and three-months time period. Collectively, this elaborate process and the many individuals and entities involved are the final arbiters of the hard truth of electoral voting results that is uncontestable and logged within the National Archives and Records Administration (NARA) as part of the permanent record of the United States of America.
"Without electoral integrity, leaders and officials lack accountability to the public, confidence in the election results is weak, and the government lacks necessary legitimacy. Electoral integrity allows for peaceful resolution of conflict, open dialogue, debate, and information sharing among leaders and the public. Integrity depends on public confidence in electoral and political processes. It is not enough to reform institutions; citizens need to be convinced that changes are real and deserve their confidence. To ensure that elections have integrity, other factors outside of the electoral institutions themselves need to be taken into account and strengthened. Election officials, judges and courts must have independence that is respected by politicians." ACE Electoral Knowledge Network"Mis- and disinformation can undermine public confidence in the electoral process, as well as in our democracy. Elections are administered by state and local officials who implement numerous safeguards to protect the security of your vote pursuant to various state and federal laws and processes. This resource is designed to debunk common misinformation and disinformation narratives and themes that relate broadly to the security of election infrastructure and related processes. It is not intended to address jurisdiction-specific claims. Instead, this resource addresses election security rumors by describing common and generally applicable protective processes, security measures, and legal requirements designed to protect against or detect large-scale security issues related to election infrastructure and processes." The Cybersecurity and Infrastructure Security Agency (CISA)
#VotingRightsIsSolution
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Added References
* Stop The Big Lie Act (very rough draft)
* The Conspiracy To Overthrow The 2020 Election
* Links to other recent rally speeches including Arizona & Texas in 2022
* Wikipedia: False statements of fact
* Congressional Research Service: Freedom of Speech and Press:Exceptions to the First Amendment
* Wikipedia: Freedom of speech
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