>> Thread: Is a call to preform a military coup illegal?
How does one pre-form a coup? Establish a template to be followed? Won’t a bit of improvisation be needed?
I think there would be room to distinguish Brandenburg if the case came up in relation to the federal statute.
Although the wording of the Ohio statute and the federal statute are similar, in Brandenburg the Ohio statute was interpreted by the Ohio trial court as not recognising the distinction between inciting imminent violent action and merely advocating for violent overthrow of government in the abstract. It was given the broadest possible meaning by the Ohio trial court, and neither of the Ohio appellate courts gave reasons commenting on the interpretation of the statute. The Supreme Court of the United States was therefore bound by the interpretation of the statute given by the Ohio trial court:
However, if a charge were laid under the federal statute in the federal courts, and it reached the Supreme Court, that court would not be bound by the lower courts’ interpretation of the statute and could interpret it in a manner consistent with Brandenburg, as only criminalising advocacy of violent overthrow that was likely to cause imminent risk of violence.
If you want to be successful, you build up the individual elements in remote locations, then you bring everything to the site and put it all together quickly.
To the first part, that is generally correct although it could be stated differently and still be correct. It is unknown how the Supreme Court would ultimately say it any different than it did.
It comes down to a judge doing his or her level best to apply the concept of Free Speech and what it means. If I was a judge in Brandenburg my thought process would follow something along the lines of that our founding fathers wanted a robust exchange of political ideas. And it is further clear that although they wanted that robust exchange, the right is not absolute. We cannot have revolutions or violent military coups because then that right, and all other rights are in danger. And serious advocacy of revolution cannot be permitted.
However, humans are humans. Especially in political disagreements, people get passionate and may cross certain lines. As a judge and as an American, would I prefer to have the government infiltrate disfavored groups and once they say certain “magic words” they get arrested? I would not because then you will have less political speech if people have to very carefully choose their words at all times and one slip up gets them thrown in prison. It is very easy to see how that can go down the slippery slope and how it already has in this country, see the Holmes “fire in a crowded theater” case where he argued that protesting the draft in a time of war could be prohibited.
In my mind, that is not what free speech means. We want such a broad exchange of ideas that the government can only prosecute you if you clearly and unequivocally go over the line so far as to make people believe that you are inciting imminent lawless action. Of course, that doesn’t make future cases any easier, because all I’ve done is created a new line where we have to debate whether this or that falls on what side of it. But at least in the future if we get cases wrong, they will still have been much more extreme than typical conversation and nobody should worry about being prosecuted for criticizing the government.
The other stuff is not really GQ, but I would say that of course the Supreme Court would have sided with the Black Panthers. The KKK was certainly not a friend of the Warren Court. I don’t have a cite, but a couple of years later a draft protester, on the National Mall in D.C. said something to the effect of “LBJ doesn’t want to give me a rifle because the first person in my crosshairs will be him.” He was arrested and charged with threatening the life of the President. The Court overturned his conviction citing Brandenburg.
Also I think it is well known that the poor are treated worse in the system. And it is not because they have shitty public defenders; many public defenders are excellent. I think that is a function that, as you said, people are human: judges, prosecutors, and jurors. When they see an accused in front of them that is different from them, they lose empathy. Once I can get a jury to say to themselves, “That could be me sitting there” I’ve won. When you have a client that lives in squalor, is prison tatted up, has three kids by three different fathers, uses drugs, etc. you can never get there.
I think that it would be illegal.
Look up how Castro came to power in Cuba.
Note that the President is also explicitly protected by Federal law as to assassination, kidnapping, assault, or conspiracy to do so: 18 U.S. Code § 1751 - Presidential and Presidential staff assassination, kidnapping, and assault; penalties | U.S. Code | US Law | LII / Legal Information Institute. Hard to imagine a military coup without someone actually laying hands on or threatening the President.
Of course. And the Framers, in their wisdom (no sarcasm), required every American public official, from your local dogcatcher to the President himself, to swear an oath to the United States Constitution:
*The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
*
Art. VI, cl. 3.
And be sure to time it to miss the KH-11 overpasses.
And of course the oath is never broken. Except by oath-breakers in the War of Southern reason who deserted from US military service. And by all too many politicians. Oath-breaking unfortunately isn’t grounds for removal or other punishment so an oath is only an “I promise!” with crossed fingers.
Sure, people break oaths and break laws. But they should remain self-aware. They shouldn’t act like Sovereign Citizens and pretend that what they’re doing is legal.
Better an oath than no oath. For people of good conscience and reasonable intelligence, it marks a moment between when you had no obligation, and when you have a very important one.
OP:“Is a call to preform a military coup illegal?”
Well, it sure is a crime against Spelling.