Were Donald Trump’s remarks at the rally preceding the melee in the Capitol Building a defensible exercise of free speech? The answer would appear to be No. Without parsing the current U.S. law on the subject, I would note that the underlying principle traces back to a passage in John Stuart Mill’s On Liberty. Mill, who was as close as one can be to a free speech absolutist, laid out one sole exception. It reads in full:
[E]ven opinions lose their immunity when the circumstances in which they are expressed are such as to constitute their expression a positive instigation to some mischievous act. An opinion that corn dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn dealer, or when handed about among the same mob in the form of a placard.
There are a couple of noteworthy features to the Millian exception: 1) whether or not the speech is defensible depends on the circumstances: the same words circulated in a periodical or on the web would be protected speech, whereas before a volatile mob they wouldn’t be; 2) the words, if uttered before a volatile mob, do not have to directly target a person or place to be unprotected speech: the two examples Mill adduces, are generic, not personally directed, exhortations—“corn dealers are…,” “private property is….”
Based on Mill’s criteria, one would be hard-pressed to deny that Mr. Trump had breached protected speech and incited a riot.
Alan Dershowitz—it is never clear, incidentally, whether he is going down with or on Mr. Trump—has advised the President to refuse to cooperate with an impeachment hearing, create a stand-off, and force the case to be heard before the U.S. Supreme Court. That’s the emeritus Harvard Law professor’s conception of the rule of law: bring the case to a court where you’ve handpicked the judges. But were this scenario played out, the Supreme Court justices picked by Mr. Trump would have to recuse themselves on account of a clear conflict of interest: if Mr. Trump were convicted, it would cast a most dark shadow on their own appointments.
If I might be forgiven one additional comment, it’s quite the sight to watch Mr. Dershowitz slowly self-immolate. But it’s yet more delicious to watch the rodents who sang his praises while he was the senior-most professor at Harvard Law School—the Martha Minows, the Steven Pinkers, the Jeffrey Toobins…—scurry off the sinking ship. Each pretends that Mr. Dershowitz is of a sudden a changed man, the “famed civil libertarian lawyer” (as the New York Times likes to denote him) who, sadly, took a wrong turn when he supported Mr. Trump or befriended Jeffrey Epstein.
But was Mr. Dershowitz ever a civil liberties lawyer? In fact, his only claim to defending civil liberties was his staunch defense of pornography in the 1960s and ‘70s. In line with this, most of his high profile cases defended alleged murderers and batterers of women: in his very first high-profile case, Mr. Dershowitz defended two Jewish Defense League members who murdered a wholly innocent secretary (he got them off); then there was Klaus von Bulow, who allegedly murdered his wife; then there was O.J. Simpson, who allegedly murdered his wife; then there was Mike Tyson, who allegedly raped his date. In between these “civil libertarian” cases, Mr. Dershowitz defended other “victims” such as Rabbi Bernard Bergman, who tortured elderly residents in his nursing home empire, billionaire “Queen of Mean” Leona Helmsley, and—not least—he personally testified in cases defending Israel against conclusive, irrefutable evidence that it tortured Palestinian detainees. None of this phased the Minows, Pinkers, and Toobins. Only when Mr. Dershowitz strayed from the fold and became too buddy-buddy with Mr. Trump (probably in hopes of copping a pardon if he was convicted in the Epstein-related case pending against him) was he abruptly declared persona non grata at Martha’s Vineyard. However, the wheels of justice turn slowly, but they turn. Now Mr. Toobin, who denounced Edward Snowden in the pages of the New Yorker as “a grandiose narcissist who deserves to be in prison,” has fallen from grace, not for being the snot-nosed, fat-faced, “grandiose narcissist” groveler to power that he is, but for, well, Toobining during a Zoom conference.* My first thought when I read about the shockingly uncouth things those Trumpian hoi polloi did in Nancy Pelosi’s office was, Where was Mr. Toobin when we needed him to teach proper conference-room etiquette? Meanwhile, it’s reported that New Yorker editor David Remnick, who was once buddy-buddy with Mr. Toobin, has now severed all ties with him. That’s what friends are for….
* Oxford English Dictionary defines Toobining, as “a rare disease, but common among Jewish putzes, originating in Martha’s Vineyard, characterized by an overwhelming urge to pleasure oneself during video conference calls.”