Of course I don't mean the title; it is just mocking some anti-free speech elitists. Mocking judges is not something the ordinary person should do, because the ordinary person isn't well versed in the first amendment nor could afford counsel who is. It's not a lesson you want to learn the hard way, if you don't believe me. Mockery is a way to keep the elitist in check, saying the things they say you cannot say as an act of defiance. Showing Oh yes we can and you can't stop me, or daring them to put the matter before a jury and having a court or jury agree with you. So there is substantial and costly risks involved in mocking/trolling elitists, and you generally need to be a powerful figure yourself to do it-like Milo. For us small people, we easily can be made to disappear as what happened to so many I blogged about. Some who have stood up to cobb county...well they just keep being arrested and disappeared because they stayed in Cobb County. When in a Nazi Regime, you have to run away. You can't even stay for family, as the county will destroy their families with perpetual undue hardships anyways. For people Roger Stone, they can defy court orders and dare the courts to make a Tony Robinson out of them, and watch the riots that follow if they do. It helps to have a lot of money, and it helps to be respected by millions.
The real reason for this post, if you don't get it already, is that the Massachusetts supreme court affirmed the conviction of Michelle Carter. If you don't know who she is/was, she was the teenager who kept texting her 18 y/o boyfriend to kill himself. To which he did. Such a horrible thing, and as a victim of mob bullying (which is likely what claims of gang stalking likely originate as) I too wish there was justice against those horrible people-besides killing them. As the first amendment stands, The Massachusetts supreme courts ruling was wrong, and a young woman is going to prison ultimately for protected speech. She was sent to prison ultimately because the alleged top lawyers in the state failed to comprehend the first amendment. Which should serve as a reminder about how fragile our speech rights really are, and why we need to protect them against the tyrants on the bench. For a list of the retards on the Massachusetts bench, you may view their webpage. More money than brains, and that's probably what got them through law school and life; How characteristic of a post industrial economy, especially in regard to blue state elitists.
Multiple issues to try to overturn the conviction were argued, but I am only going to highlight the speech issues. The Massachusetts supreme judicial court didn't consider the use of the phone as non-speech conduct, instead they focused more upon an rarely used category called speech integral to criminal conduct. The origin of "speech integral to criminal conduct" seems to be in Giboney v empire storage and ice co, or when it is invoked that is what is cited. Much of the progeny are are cited in cases from the 1950s and 60s. There were about 30 pages worth of links on google through a custom site search on justia, I spent several hours reading the first 7 pages of links. I doubt I will use more time. Giboney itself was a cases of union picketers picketing a company [Empiror storage and ice] who sold ice to non-union peddlers, and the union didn't like that. Had Empiror entered into an agreement with a union, the company would violate state law. Giboney was a case in equity-not a criminal case-to prevent the irreparable injury being caused by the picketers as they tried to coerce the company to violate state law. However the one liner off cited in cases that reference it is thus:
'it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.'
Mentally you could get a picture of all sorts of cases this could apply too, conspiracy, fraud, etc. Thus the premise itself isn't flawed as it is true, but the ruling is being abused far beyond its original application. That category, as rarely as it is raised, has in practiced mainly been used for three things things: To manage the balancing of industrial powers seems to be the basis of this rule. See Senn v. Tile Layers Protective Union, 301 U.S. 468 (1937).
But also see Hughes v superior court (" Industrial picketing "is more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action of one kind or another, quite irrespective of the nature of the ideas which are being disseminated.""); To coerce various elements of patriotism. Burning a draft card is more about a test for strict scrutiny than Giboney, and a state may no longer criminalize burning a flag-but of course could still prosecute such a burn in a law against burning, and; In the 1970s it has been extended to CP including the sales and distribution (I assume the reader knows what CP means). However, CP in itself an unprotected category of speech. See NSFW New york v Ferber But it has the affect of, in this case, or doing two things rejected by the scotus. It uses an improper category of speech to create a new unprotected category of speech, and they endorsed speaker based discrimination. Most sinister, it could be used as a device to nullify first amendment defenses by merely calling any speech integral to criminal conduct. And Giboney has been used for evil purposes, even if as libertarians we might object to affirmative action we don't want people arrested for expressing ideas...but that is exactly what has happened. The Hughes case has also applied Giboney to support contempt charges on picketers who advocated for affirmative action type programs of proportional hiring because the state of California criminalized discrimination-so California at one time used their discrimination statutes to defend against reverse racism. The Searle v johnson (1982) case, if it were to apply to GA, supports liability if I were to advocate boycotting Cobb county until they improved their human rights record because some company claimed an economic harm. Luckily the searle decision was reversed in 1985 in searle v johnson, admitting that naacp v clairborne hardware supported their right to boycott under their circumstances. it mustn't be forgotten that in searle (1982) cited clairborne hardware, which searle (1985) would have us believe was something new. No, they screwed up the first time by being fixated on Giboney. There are other cases where it seems to be invoked, such as trespassing cases, and the formation of the obscenity category, and the early years of breach of the peace statutes. Why must it be invoked?
One can only wonder Why the scotus left Giboney in the US v stephens case that outlined the unprotected categories of speech if we are to believe the mass supreme court. Surely they wouldn't support prosecuting an author/director who wrote/produced a book/movie on crime, or one of those life hack videos on how to escape from handcuffs, or a how to video on how to make basic weapons if a felon were to make a gun. Books by criminals by gangsters have been best sellers, and even a movie of the year-which the court protected the author in Simon and shuster v new york crime victims board. It also contrasts with Brandenberg v United states, also cited in the stephens case, which in order for advocacy (talking about is more passive than advocating) to be prosecuted a state needs to show that the speech was imminently and likely to produce said unlawful use of force. There is no question that the harm was imminent in the Carter Cases, the court focused on Giboney. As the Carter court pointed out speech regarding suicide can be protected. Suicide itself is not illegal so it cannot meet the unlawful conduct requirement of brandenberg.
The purpose perhaps of deferring to Giboney should signal a strong danger to the first amendment. Many of the non-union cases using Giboney have been reverse because they are so bad, others not involving unions could be decided in the absence of Giboney. Unions were a big problem in the early 20th century. Instead of school massacres that we have today, there were union massacres-not to mention organized crime. But not all picketing was unlawful, and the courts in the early 40s struck down anti-picketting statutes as unconstitutionally vague when it proscribe picketing without a lawful purpose (thornhill v alabama). Giboney supported enjoining picketers if it was for an unlawful purpose; that is to prevent them from coercing companies to violate state laws [for the unions benefit]. It exists because states have refused to take the objectivist concept of a separation of state and economy. Giboney has been used in cases where fora jurisdiction is better, a time manner or place restriction, a test for strict scrutiny, a safety issue such as keeping the streets safe, or other criminal statutes such as fraud or conspiracy. That doesn't negate Giboney of course, just questions its relevance in these decisions. Massachusettes may be engaged in pioneering new unprotected categories of speech, as our scotus has done with obscenity. Using the Obscenity evolution, it kind of a way of saying we don't know what we are doing as the law is still evolving, therefore you should be punished in no uncertain terms "we know it when we see it". Unlike the scotus, the states are not allowed to create new categories of speech. Could it be that Massachusetts may be invoking Giboney to do just that. It is a very dangerous precedent, one that has caused countless people to needlessly be punished with no victims. But I think something more sinister is going on.
In general there is conduct and pure speech conduct. It is sad, particularly given the symbolic speech cases, that our jurist can't distinguish the two....But are they really that dumb or are they just evil? The Massachusetts supreme court is fixating the Michelle's conduct constituted manslaughter, ultimately upon a 203 year old state court decision that was decided far before the categorical analysis supporting a conviction of manslaughter where a person advocated that a prisoner kill himself. There is an inherent danger in such originalism, in that many of the constitutional issues some 200 years ago hadn't had the opportunity to be tried and tested-especially as applied to states and after the passage of the 14th Amendment. Also since then first amendment jurisprudence has evolved. A death happened by suicide, and there was pure speech activity advocating for that outcome. But the massachusettes court is fixated on the Giboney ruling that if it is speech integral to criminal conduct then it isn't protected by the first amendment. If you libel someone and they commit suicide, has that ever invoked criminal liability? The punishment for libel generally is limited to tort, but there are old dinosaurs out there. Does not being protected by the first amendment as the Massachusetts court posits Giboney does always open up the possibilities to criminal liability? The originalism behind Giboney wasn't criminal liability, but to provide a remedy in equity to balance competing industry interests. I think Brandenberg overrules Giboney outside of this narrow interest, 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 incite or produce such action. Carter was clearly advocating for his death. The massachusettes court in carter II (I assume this is carter II) seems to agree it is advocacy aka "pressuring".
The only verbal conduct punished as involuntary manslaughter has been the wanton or reckless pressuring of a vulnerable person to commit suicide, overpowering that person's will to live and resulting in that person's death. We are therefore not punishing words alone, as the defendant claims, but reckless or wanton words causing death. The speech at issue is thus integral to a course of criminal conduct and thus does not raise any constitutional problem.
They later contradict their vulnerable person argument. As so many case laws remind us, Snyder v phelps comes to mind, speech is allowed to stir people into action, bring people to tears, and cause great pain. There is a constitutional problem.
Since the feminist were allowed to gag men in 1976, and the passage of vawa in 1994, the freedom of speech has been going downhill. Furthermore, mass is another one of these left wing states. I think the ruling is intended as a step to further strip massachusettes code 43A, relating to harassment, of as applied challenges defenses. That is to allow prosecutions to commence for the benefit of any person who cries "severe emotional distress" to any speech they don't like. Simply declare the speech as "a course of conduct" that caused severe emotional distress, say it is a criminal offense, and thus erase the first amendment defenses found in many harassment/stalking statutes. Why do this? Because they probably hate it that conservatives have better ideas, and loves to troll the left. Just subpoena the IP addresses and name and prosecute the online speaker, in violation of their anonymous speaking rights.
The other part that undermines the massachusettes supreme court is their very own defense of how they try to claim they aren't engaged in content based discrimination.
Regardless, even if we were to apply strict scrutiny to the verbal conduct at issue because it might implicate other constitutionally protected speech regarding suicide or the end of life, we would conclude that the restriction on speech here has been narrowly circumscribed to serve a compelling purpose. As we explained in Carter I, 474 Mass. at 636, and reemphasize today, this case does not involve the prosecution of end-of-life discussions between a doctor, family member, or friend and a mature, terminally ill adult confronting the difficult personal choices that must be made when faced with the certain physical and mental suffering brought upon by impending death.
There analysis of strict scrutiny is flawed. Yes there is an evil that occurred that government has an interest in preventing, but such a precedence is chilling to the first amendment. A person could say "do it", even repeatedly, thinking a person can't, as sarcasm, or thinking they are just seeking attention, or sympathy, or feeding a fantasy-only to be prosecuted for a grim reality later. The facts in this case are disturbing, but the ruling is not narrowly tailored as it proscribed more speech than is necessary to achieve some compelling governmental interest. Obviously suicide and euthenasia are obvious end of life scenerios, even if the court disagrees that depression is a terminal illness. There can be a real psychosomatic pain to depression. It is not uncommon for people with autism to have depression attacks, and kill themselves with no warning. The suicide rates for some disorders are alarming, and the government does everything it can to make life more miserable.
Reality has chosen that it was indeed terminal, and the justices are delusional for ignoring the court of final appeal as Ayn Rand would say. Also, in many states and countries euthenasia is a valid, but controversial, medical procedure-even when a person suffers from depression. What if she had, instead of advocating carbon monoxide posioning, suggested going to Holland. from https://www.telegraph.co.uk/news/2016/05/11/netherlands-sees-sharp-increase-in-people-choosing-euthanasia-du/
Whereas just two people had themselves euthanised in the country in 2010 due to an "insufferable" mental illness, 56 people did so last year, a trend which sparked concern among ethicists .
He regarded her as a girlfriend, which is far more significant than a friend. Ultimately, The case does involve the prosecution of an end of life discussion between a friend and a mature terminally ill adult confronting the difficult personal choices that must be made when faced with certain physical and mental suffering brought upon by an impeding death. The court is absolutely wrong when they claim otherwise. But the death didn't happen the way the court wanted, it wasn't the speech and the result that they wanted HER to give. But, they would have found it acceptable if someone pulled a peter keating against the elderly only through the hospice industry which might involve starving, sedating, and dehydrating the elderly to death, or denying medical care. Only certain speakers may speak and present only the options the government endorses, it appears.
again these are the first 70-ish results out of about 300 on google.
City of L. A. v. Los Angeles etc. CouncilUnion Equity, C.O.A. CA (1949)
National Labor Relations Board, v. Wine, Liquor & Distillery Workers Union, Local I,distillery, Rectifying and Wine Workersinternational Union of America Union Equity, 2nd circuit (1949)
self v taylor Union Equity, sc AR (1950)
Construction and General Labor Union v. Stephenson Union Equity, sc TX (1950)
Building Service Union v. Gazzam, 339 U.S. 532 (1950) Union Equity, Scotus (1950)
National Labor Relations Board v. Local 74, United Brotherhood of Carpenters & Joiners of America, A. F. of L. et alunion Equity, 6th circuit 1950
Hughes v. Superior Court, 339 U.S. 460 (1950)Racial employment Equity, SCOTUS (1950)
United States v. Dennis et alCommunity preparing to overthrow govt, 2nd cir (1950)
Ostroff v. LAUNDRY ETC. LOCAL NO. 566Union Equity, S.C. Washington (1950)
Missouri Cafeteria v. McVeyUnion Equity, S.C. Missouri (1951)
<a href="https://supreme.justia.com/cases/federal/us/341/494/>Dennis v. United States, 341 U.S. 494 (1951)"Criminal, "Their conspiracy to organize the Communist Party and to teach and advocate the overthrow of the Government of the United States by force and violence created a 'clear and present danger' of an attempt to overthrow the Government by force and violence. They were properly and constitutionally convicted for violation of the Smith Act. The judgments of conviction are Affirmed." Scotus (1951) (precursor to Brandenberg v Ohio, invoking language of schenck v United states (1919)).
Kinard Const. Co. v. Building Trades CouncilUnion Equity, S.C AL (1953)
Seven Up etc. Co. v. Grocery etc. UnionUnion Equity, S.C. CA (1953)
Sommer v. Metal Trades CouncilSc, CA (1953)
Garner v. Teamsters, C. & H. Loc. Union 776 373 Pa. 19 (1953) Union Equity, sc PA, 1953
Anheuser-Busch, Inc. v. WeberUnion Equity, Missouri (1954)
Tallman Company v. Latal Union Equity, S.C. Missouri (1955)
Baderak v. BLDG. & CONST. TR. COUNCILUnion Equity, S.C PA (1955)
Milwaukee Boston Store Co. v. Amer. Fed. of HWUnion equity, S.C. WI (1955)
<a href=https://law.justia.com/cases/missouri/supreme-court/1956/45026-0.html">Heath v. Motion Picture MacH. Operators Union No. 170Union Equity, S.C. MO (1956)
Adams Dairy v burkeUnion Equity, S.C MO (1956)
Aladdin Industries v. Associated Transport Union Equity, S.C. TN (1956)
Cain, Brogden & Cain, Inc. v. LOCAL UNION NO. 47, ETC.Union, Equity, S.C. TX (1956)
Vogt, Inc. v. International BrotherhoodUnion Equity, S.C WI (1956)
Farnsworth & Chbrs. v. IBEWUnion Equity, Sc TN (1957)
Pruitt v. LambertUnion Equity, S.C. TN (1957)
Quaker City Motor P. Co. v. INTER-STATE MOTOR FR. SYSUnion Equity, US E.D. PA (1957)
Roth v United States Mailing Obscenities (dissent defending obscenity) (1957)
Teamsters Union v. Vogt, Inc., 354 U.S. 284 (1957)Union Equity, SCOTUS (1957)
John Kasper, Appellant, v. D. J. Brittain, Jr., et al., Appellees Segregationist Equity, 6th circuit (1957)
Yates v. United States, 354 U.S. 298 (1957)Criminal appeal of Communist who advocated overthrowing the United states. (dissent: "As the Virginia Assembly said in 1785, in its "Statute for Religious Liberty," written by Thomas Jefferson,"it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order. . . .* Cf. Giboney v. Empire Storage & Ice Co., 336 U. S. 490")
Kaiser v. Price-Fewell, Inc. Union equity, S.C AR (1962)
Meat Drivers v. United States, 371 U.S. 94 (1962) Union Equity, SCOTUS (1962)
HATTIESBURG B. & T. COUNCIL v. BroomeUnion Equity, Sc. MS (1963)
Walker v. StateTrespassing in a krystals over alleged racial discrimination, s.c. GA (1964).
Miller v USDraft card burning. US S.D. NY (1965)
US v Miller us 2nd circuit, draft burning conviction appealled claiming protected symbolic speech (1965).
Forman v. City of Montgomery, 245 F. Supp. 17Removal jurisdiction, test if police were racially motivated for arresting block protestors who blocked a sidewalk. (1965)
Centennial Laundry v. West Side Org.Union Equity, S.C. IL (1966)
Ginzberg v United States Obscenity, SCOTUS (1966). deprecated in Miller v California.
United States v. Smith, 249 F. Supp. 515 (S.D. Iowa 1966)Burning Draft Card, US DC IA (1966)
O'Brien v united states US first circuit, flag burning appeal claiming protected symbolic speech (1967).
Chi. Real Estate Bd. v. City of ChicagoDeclaratory in fair Housing Ordinance, S.C. IL (1967)
Bacheller v. State protest in a recruitment center during vietnam war, COA MD (1968)
Emery v. HOTEL AND RESTAURANT EMP. U. LOCAL NO. 556 Union Equity, S.C. Minnesota (1968)
Cameron v. Johnson, 390 U.S. 611 (1968)Picketing inside a courthouse against discrimination (equity), Scotus (1968)
State v. AyersDisorderly conduct S.C. De, (1969)
<a href="https://law.justia.com/cases/illinois/supreme-court/1970/42733-6.html>City of Chicago v. Morris Criminal breach of the peace for arguing with an officer, S.C illinois (1970). The court disregarded the cited cox v Liousianna, see also Gooding v Wilson (1972).
Deeds v. Statecriminal coa, texas (1971). Deprecated by texas v Johnson (scotus, 1990+-)
UNITED MAIN. & MFG. CO., INC. v. United Steelworkers Union Equity, S.C. WV (1974)
State v. LambertCriminal Appeal, running a criminal (pyramid?) scheme. S.C. WI (1975)
Searle v JohnsonSecondary boycott liability for discouraging tourism, S.C Utah 1982
Joslin v. Secretary of Dept. of Treasury, 616 F. Supp. 1023Declaratory, Regulations regarding professionals. US D. court Utah (1985)
State v State v. Springer-ErtlJury Tampering (granted new trial on first amendment grounds), S.C. SD (2000)
Rumsfeld v Forum for Academic and individual rightsSolomon amendment (recruited on campus id recieve fed funds), scotus 2006.
GERHART v. STATEblackmail (put a bill to be heard by a committee and pass, or we'll investigate and publish dirt). COA OK, (2015) ("The facts of the present case are distinguishable. Appellant's email did not urge or compel the Senator to violate the law or commit an unlawful act, nor was it sent with the intent to compel the Senator to violate the law. The email was sent with the intent to convince the Senator to change his mind on a political issue.....The alternative ways of committing blackmail listed in the statute do not extend to Appellant's conduct in this case. A communication is felonious under the blackmail statute based on what the speaker threatens to do. Here, Appellant did not threaten to do any act prohibited by the statute. The blackmail charge in this case was premature.")
Goodwin v. United StatesHabeas Corpus in Soliciting a minor to travel out of state for [unlawful] relations.