Congrats Fox News the USAO-DC July 8th message for you & Trump
What kind of person traumatizes a woman’s family with his dangerous lies about The Who/Why/When/Where and how she died? Go look up 18 U.S.C. § 1038 —False information and hoaxes
Late on the evening of July 8, 2021 I noted that for the first time a USAO’s finally just said it. That Donald J Trump and some television stations are broadcasting his lies are dangerous. Present a clear and present danger to the community writ large. To that end - let’s reread what the USAO-DC filed
July 8, 2021 Motion Opposition by USA
Memorandum in Opposition by USA as to ALEX KIRK HARKRIDER re 39 First MOTION to Modify Conditions of Release via DDC-ECF - or via my public drive. The cornerstone of the Government’s argument is multi-fold; in Feb 2021 the Defendant was indicted on eight counts. And has a history of not being exactly forthcoming - I now (once again refer you to pages 3 & 4… which reads in part:
“…Trump continues to make false claims about the election…insinuate that he may be reinstalled in the near future as President without another election…Television networks continue to carry and report on those claims…”
These sentences lay bare, in it’s exquisite simplicity yet brutal honesty - a current USAO Prosector just said the facts. Because facts are facts and should be repeated until the facts finally sink in.
And I quadruple checked - the July 8, 2021 Motion Opposition is the only time the Government and more specifically Prosectors from any USAO used this kind of language. I checked LexisNexis and WestLaw for that phrase or an iteration of those sentences. There are no other Government Court filings that say this.
“…Trump continues to make false claims about the election…”
I rarely if ever pontificate about what a State Attorney General argues muchless encourage a sitting Federal District Court to not only sanction but move to disbar Rudy Giuliani, Synder Powell and/or L Lin Wood. The fact is during today’s hearing each of the aforementioned
Because as Madam Attorney General astutely and correctly points out - an Attorney is an “officer of the Court” -upon taking and passing their bar exam, they raise their hand and swear an oath
The vast majority of State Bar oaths reads as follows;
ATTORNEY’S OATH
I, _______________________________________________________ do solemnly swear that I will support the Constitutions of the United States, and of this state; that I will honestly demean myself in the practice of law; that I will discharge my duties to my clients to the best of my ability; and that I will conduct myself with integrity and civility in dealing and communicating with the court and all parties. So help me God.
This is how the American Bar Association (ABA) breaks down the anatomy of “the oath” but first I’d like to explain the following:
A prerequisite of your license is your inviolable promise that you will always support and defend the Constitution in all situations.
“the term that means not to be violated or able of being invaded”
—Black’s Law Dictionary defines promise as:
“A declaration, verbal or written, made by one person to another for a good or valuable consideration in the nature of a covenant by which the promisor binds himself to do or forbear some act, and gives to the promisee a legal right to demand and enforce a fulfillment. See Taylor v. Miller, 113 N. C. 340, 18 S. E. 504; New- comb v. Clark, 1 Denio (N. Y.) 22S; Foute v. Bacon, 2 Cush. (Miss.) 104; U. S. v. Baltic Mills Co., 124 Fed. 41, 59 C. C. A. 558. “Promise” is to be distinguished, on the one hand, from a mere declaration of intention involving no engagement or assurance as to the future; and, on the other, from “agreement,” which is an obligation arising upon reciprocal promises, or upon a promise founded on a consideration. Abbott. “Fictitious promises,” sometimes called “implied promises,” or “promises implied in law,” occur in the case of those contracts which were invented to enable persons in certain cases to take advantage of the old rules of pleading peculiar to contracts, and which are not now of practical importance. Sweet” And as the ABA correctly states:
Merriam-Websterdefines an oath as “a solemn attestation of the truth or inviolability of one’s words.” We ask new attorneys to take an oath on the day they receive their licenses and as a condition of that license. The words in that oath are a mandate to all attorneys that they practice with professionalism, integrity, and respect. Each state’s oath varies in its wording, but they all require of us the same three duties: 1) to support the Constitution of the United States, 2) to faithfully discharge the duties of an attorney, and 3) to conduct oneself with integrity and civility.
The non-legalese translation - when an attorney (both orally and/or in writing -yes some State Bars require oral and a written signed oath) raises their hand to take the “attorneys oath” this is a promise to uphold and protect our Constitution and our laws, to the best of their ability…as “an officer of the Court”
Here is a recent (Jan 2021) video
The Berkeley Law Alumni Association congratulates all alumni who recently passed the California Bar Exam. We invite you to commemorate this achievement by joining Dean Erwin Chemerinsky and fellow graduates for Berkeley Law’s virtual Swearing-In Ceremony.
This is a sacred oath — it’s not me being opinionated - the attorney’s oath is a very serious matter - promising to uphold honesty, ethics, and professionalism that comes with being an officer of the court.
If as Mr Trump purports to be “the biggest” advocate for the “Rule of Law” —if that were true then accurate and correct information in a Courtroom is absolutely paramount. Otherwise Trump’s bluster is as empty as his soul. When an attorney speaks (either orally or through written briefs) to a Court, they are doing so “as an officer of the Court” - period. Full Stop.
This recent CNN New Day segment point by counterpoint covering Trump’s CPAC lie-a-pooloza. It’s impossible to think that any reputable news organization (looking at you Fox News and Fox Business) would debase themselves by shamelessly amplifying Trump’s dangerous and deadly lies.
Fox News’ 40 second disclaimer #Fail
When “Fox News” is forced to air almost simultaneously a legal disclaimer - maybe heads should start to roll at Fox News. I refuse to blog about Trump’s morning telephone interview - for the record that doesn’t offer any type of indemnification —if anything it shows Fox News is more concerned about the numerous lawsuits, where they are defendants. So Stipulated….
FFS he quadrupled down - how do you think Ashli Babbit’s family feels hearing the disgraced former president repeat (no less than four times in under 60 seconds) “she was shot in the head” - no the DC medical examiner stated she was “shot in the shoulder” —what kind of demented sociopath chooses to weaponize her death? Yet somehow Trump and Fox News has Stockholm’d her family into regurgitating Trump MAGA-QANONsense conspiracies.
How do you think her family feels hearing his weaponization of his lies? You can disagree with me - but I think a valid argument could be made that Trump is responsible for Ms Babbit’s death. That she believed the lies uttered by Trump and his surrogates and then the same lies Fox News repeatedly and unrepentantly amplifies on a daily basis. It’s called conditioning. I suppose one could argue it’s brainwashing. Back in 2017 I took a lot of heat for saying “Trump is a cult leader and the cult is MAGA-QANON” —nearly 4.5 years later I think my amateur observation was and still is correct. If it walks like a cult. If it talks like a cult. If it acts like a cult - spoiler well duh - it’s a cult.
To be clear I vacillated whether or not to create this video, in the end I opted to “just do it” - on July 11, 2021 Fox News allowed Donald Trump nearly 8 minutes of uninterrupted airtime. Which means Fox News isn’t just complicit —they are willing co-conspirators of Trump’s insurrection . Every time they allow Trump to lie —they are putting actual targets on Democrats backs, endangering the lives of countless law enforcement officers and most egregiously they continue to attack our Democracy. The weaponizing Trump’s big lie. People died because of Trump’s lies. As a Country most of us where traumatized by what we saw unfold on live TV.
If the public reporting is correct (I have no other reason to believe it’s not) —Trump was borderline “gleefully” and was perplexed by those around him seemed horrified at what Trump’s mob. On June 16. 2021 (see article with document the timeline document was embedded ) The House OverSight Committee released an updated US Capitol and Department of Defense January 6th timeline -I think I did a decent job reporting the actual facts and provided you with ample documentation. Do you know what’s missing? -Donald J Trump -
he never called the DOD,
he never called the DC National Guard (of which the POTUS is the Commander in Chief because DC isn’t a state)
he never called is his Vice President
And yet Fox News amplifies Trump’s dangerous and deadly “big lies” - so I went ahead and improved Trump’s off the rails insane interview by overlapping Law Enforcement Officers Body Camera Footage and it made his interview tolerable to watch
I will probably regret publishing this but I’ve had it with the lies. Five people died during the Jan6th insurrection - 3 police officers died, albeit 2 by suicide days later but I swear on my ancestors souls heads better start rolling at Fox News. I would support the Biden Administration ordering the FCC to review Fox News’ broadcasting license be scrutinized.
FCC and Fox New Broadcasting License -PULL IT or Fine Fox News.
In re Applications of Fox Television Stations, Inc. For Renewal of License of Station KTTV(TV) Los Angeles, California; Rainbow Broadcasting, Inc .For Construction Permit for a New Commercial Television Station in Los Angeles, California - Pdf -
The FCC is prohibited by law from engaging in censorship or infringing on First Amendment rights of the press. It is, however, illegal for broadcasters to intentionally distort the news, and the FCC may act on complaints if there is documented evidence of such behavior from persons with direct personal knowledge. For more information, please see our consumer guide, Complaints About Broadcast Journalism
Back in 2013FCC unlikely to revoke broadcasting licenses for Fox, say experts - I’d argue now in 2020 and 2021 the FCC should examine Fox News broadcasting license - especially in light of the recent lies/false information Fox News allows their.
18 U.S.C. § 1038 —False information and hoaxes
This law isn’t discussed or referenced as much as it should be. Granted I could be wrong - 18 U.S.C. §1038 could in fact be used to tamp down disinformation but again I don’t understand why most are so unfamiliar with this statute (granted much of the context crosses over into 18 U.S.C. §1001 regarding false information to Law Enforcement, Congress etc) But if you read the plain language of §1038. - I think a solid argument could be made -particular on civil matters. The statute which is broken up into several subsections
(a) Criminal Violation.—
(1) In general.—Whoever engages in any conduct with intent to convey false or misleading information under circumstances where such information may reasonably be believed and where such information indicates that an activity has taken, is taking, or will take place that would constitute a violation of chapter 2, 10, 11B, 39, 40, 44, 111, or 113B of this title, section 236 of the Atomic Energy Act of 1954 (42 U.S.C. 2284), or section 46502, the second sentence of section 46504, section 46505(b)(3) or (c), section 46506 if homicide or attempted homicide is involved, or section 60123(b) of title 49, shall—
(A) be fined under this title or imprisoned not more than 5 years, or both;
(B) if serious bodily injury results, be fined under this title or imprisoned not more than 20 years, or both; and
(C) if death results, be fined under this title or imprisoned for any number of years up to life, or both.
I think (operative word) this subsection could be relevant and it’s something that it likely under the FCC jurisdiction as it relates to Broadcast Licensing
(Yes Fox News I’m looking at you)
(b) Civil Action.—
Whoever engages in any conduct with intent to convey false or misleading information under circumstances where such information may reasonably be believed and where such information indicates that an activity has taken, is taking, or will take place that would constitute a violation of chapter 2, 10, 11B, 39, 40, 44, 111, or 113B of this title, section 236 of the Atomic Energy Act of 1954 (42 U.S.C. 2284), or section 46502, the second sentence of section 46504, section 46505 (b)(3) or (c), section 46506 if homicide or attempted homicide is involved, or section 60123(b) of title 49 is liable in a civil action to any party incurring expenses incident to any emergency or investigative response to that conduct, for those expenses.
(c) Reimbursement.—
(1) In general.—The court, in imposing a sentence on a defendant who has been convicted of an offense under subsection (a), shall order the defendant to reimburse any state or local government, or private not-for-profit organization that provides fire or rescue service incurring expenses incident to any emergency or investigative response to that conduct, for those expenses.
(2) Liability.—A person ordered to make reimbursement under this subsection shall be jointly and severally liable for such expenses with each other person, if any, who is ordered to make reimbursement under this subsection for the same expenses.
(3) Civil judgment.—An order of reimbursement under this subsection shall, for the purposes of enforcement, be treated as a civil judgment.
for the record this isn’t about chilling one’s constitutional right under the first Amendment. This is about “incitement of violence” which is without debate not covered by the First Amendment. See SCOTUS’ landmark ruling
Brandenburg v. Ohio, 395 U.S. 444 (1969) landmark ruling
SCOTUS held: thusly establishing the “imminent lawless“ doctrine and Brandenburg test…”such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
Since the statute, by its words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action, it falls within the condemnation of the First and Fourteenth Amendments. Freedoms of speech and press do not permit a State to forbid 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 incitt or produce such action. Whitney v. California, 274 U. S. 357, overruled. Reversed.
SCOTUS on “clear and present danger” test
Some foolishly argue that Brandenburg wasn’t a progeny of — Schenck v. United States, 249 U.S. 47 (1919) - seeLaw Library of Congress, last accessed on July 12, 2021.
In Schenck (which was also a landmark ruling) SCOTUS The test says that the printed or spoken word may not be the subject of previous restraint or subsequent punishment unless its expression creates a clear and present danger of bringing about a substantial evil.
Requirements:
The clear and present danger test features two independent conditions: first, the speech must impose a threat that a substantive evil might follow, and second, the threat is a real, imminent threat. The court had to identify and quantify both the nature of the threatened evil and the imminence of the perceived danger.
The Clear and Present Danger Test evolution and modifications - over the years SCOTUS held in Gitlow v. New York (1925), SCOTUS held (via a) majority opinion of the Court, “.. more restrictive bad tendency test to uphold a conviction under New York’s Criminal Anarchy Law of 1902 for distributing a socialist pamphlet”
Holmes and Brandeis dissent (found in the last 3 pages of the embedded Law Library of Congress link) is also worth rereading —it is one of my favorites (even though I disagree) I still respect the intellectual honesty and self deprecating cadence - again in my industry reading dissents is a prerequisite…
If what I think the correct test is applied, it is manifest that there was no present danger of an attempt to overthrow the government by force on the part of the admittedly small minority who shared the defendant's views. It is said that this manifesto was more than a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result. Eloquence may set fire to reason….
…But whatever may be thought of the redundant discourse before us it had no chance of starting a present conflagration. If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.
Several decades later, in Dennis v. United States, 341 U.S. 494 (1951)), SCOTUS actually reformulated (in a more restrictive manner) the clear and present danger test. And opted to use “the gravity of the evil test” to address growing hysteria of the spread of communism —colloquially known as “the red scare” —In Dennis SCOTUS held: Dennis did not have the right under the First Amendment… to exercise free speech, publication and assembly — if such exercise involved in the creation of a plot to overthrow the government:
…In each case [courts] must ask whether the gravity of the "evil", discounted by its improbability, justifies such invasion of free speech as necessary to avoid the danger…
Amendment I -read it
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
…apologies for how disjointed this article is - I should have probably waited until I could give this my full attention versus trying to rush it out. But I have 11 articles sitting in my “draft” queue and I either need to just publish them or delete them. At any rate thanks for reading my disjointed rant. And if I did this correctly this should publish while I’m on hour 4 of a meat grinding session aka deposition - which had been rescheduled four times.
Filey, thank you so much for a ray of sunshine in these trying times. Hope you are well. I miss your daily Twitter posts.
My son, "State Your Name", graduates from Berkeley in May '22. Yippie.