Legal and Moral Arguments Surrounding the Broadcast Execution of Former US Army Major/Psychiatrist

This blog will analyze, from a variety of perspectives, the Department of Defense’s plan to broadcast the firing squad execution of Nidal Hasan.  The former United States Army Major and psychiatrist was convicted of killing 13 unarmed U.S. soldiers and wounding 32 others at a Fort Hood army base in 2009.  According to some reports, President Trump has not yet decided whether the execution will be livestreamed, and several prominent Republicans have voiced disapproval and concern for a public execution, which hasn’t happened in the United States in almost a century. 

 I will present arguments for and against the death penalty in general, and for and against broadcasting the execution, that let readers decide for themselves. At the outset, I want to acknowledge that I personally hope this execution is not broadcast publicly.

Legally, because the death penalty is mentioned in the Constitution, the Supreme Court has held that states and the federal government are entitled to implement the death penalty.  The Court has also held that the death penalty does not violate the Equal Protection Clause of the Fourteenth Amendment, although at least one study indicates that the race of the perpetrator and the victim may play a role in whether a jury favors the death penalty over a prison sentence.  The decision on whether to permit the death penalty as a sentence for murder is therefore not foreclosed by the Constitution and rests in the hands of the states.  The death penalty is outlawed in about 23 states plus the District of Columbia as a matter of policy.

There are moral arguments against the state’s ability to take the lives of those convicted of homicide crimes, including concerns about executing the innocent, the cruel nature of the punishment, and the fact that the state should not have the power to extinguish a life.  The arguments in favor of the death penalty involve a sense of closure for the families of victims and studies indicating that the death penalty serves as a deterrent to murder and thus saves lives (studies are mixed on this front).

However, many believe the purpose of a live broadcast, as opposed to administration of the death penalty, fosters an environment of blood lust and revenge, not properly considered justice in a civil society. 

One major reason for the opposition to broadcasting the fulfillment of Mr. Hasan’s sentence is that public executions of this nature are generally associated with oppressive regimes instilling fear in the public and suppressing dissidents. Iran and North Korea use public executions as a fear tactic to ensure that people cannot exercise freedom of speech (for example watching South Korean media).  Terrorist entities like the Islamic State broadcast beheadings as a tool of psychological torture and recruitment. Hamas has been torturing and executing in the streets Palestinians accused of spying for enemies, generally without real trials, and filmed its behavior on October 7, sometimes streaming it on Facebook for relatives to see their loved ones tortured and murdered.  American Wall Street Journal reporter Daniel Pearl was beheaded by jihadists in Pakistan, and the video spread across the Internet about a month later.  

Of course, these types of regimes and terrorist groups often broadcast executions of people in response to activities that could not be considered crimes in this country, like Iran’s continual execution of protesters who speak out against the regime, or terrorist groups executing innocents.  Mr. Hasan was convicted of 13 homicides, and free countries like the United States, Japan, Taiwan, and India retain the death penalty for violent crimes. 

However, the last time the United States publicly executed someone was Rainey Bethea, in 1936, for a crime – rape – that would not qualify for the death penalty today.  The Supreme Court has held that the Eighth Amendment’s prohibition on cruel and usual punishment limits the death penalty to murder cases.  Around 20,000 people gathered to watch Mr. Bethea’s execution, and the public backlash was so stark that eventually all states and the federal government outlawed public executions. There was also a civil rights element to this public execution, as Mr, Bethea, a Black man, was convicted of raping a white woman in Kentucky.

In the United States, victims and other invited guests are often permitted into a private gallery when the death penalty is administered.  The federal courts of appeals have split on whether the media or the public have a First Amendment right to view executions.  Many opposed to the death penalty believe that death sentences should be publicly broadcast so the public can see the full horrors of this legal form of punishment. The public has a right to see the treatment of Mr. Hasan, they argue, in order to decide how they feel about the death penalty.

Federal law outlaws broadcast executions of federal prisoners, but the military has not applied those restrictions to military prisoners.  Firing squad is an approved method of carrying out a death sentence (and indeed, many believe it is faster and less cruel than methods like lethal injection).  Mr. Hasan may still appeal his military conviction to the federal courts, which could stall the December 3 date of his planned execution.

Because we live in a free society, we have the privilege of discussing these issues publicly. I hope we continue to do so.  Nidal Hasan’s murders have been classified as an act of terrorism, and he is described as self-radicalized.  I fear for what it says about us if we use the tactics of those he admired to carry out his legal death sentence.  I think often of Nietzsche’s quote that if someone gazes into the abyss long enough, the abyss gazes back at them.  There is no reason to broadcast an execution (an act associated with barbarism) to the world to punish a barbarous act, especially when some people believe that simply imposing the death penalty is barbarous enough. 

Artificial Intelligence as Speech (forthcoming in the First Amendment Law Review)

Download:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=7584799

Abstract:

Artificial intelligence (AI) often looks like speech, functions like speech, and causes the same types of harms as speech. Many aspects of the output of AI should therefore be considered protected speech under the First Amendment. Failure to protect this output will give the government alarming power over our ability to inform, express, and communicate. Without free speech protections, the government could prohibit AI from discussing certain topics or espousing certain viewpoints. 

This Article aims to demonstrate how our current First Amendment doctrine already provides the framework to regulate AI while preserving the free speech rights of creators and users. There is no requirement that expression be “certain” to qualify as speech, and our free speech jurisprudence will be upended if AI is not deemed speech. Even if the outputs of AI are considered speech, the government can address some of the harms caused by AI through longstanding free speech doctrine. In addition, because of the differences between AI and traditional speech, the government may have some enhanced power to compel AI creators to disclose when content is AI, or to compel disclosure of the sources of the AI output.

Hot Topics in Free Speech: September: Press Passes and Cancelled Concerts

Below is the inaugural post for a series where I analyze the month’s most discussed free speech topics. I will attempt to do this in a non-ideological way.  The First Amendment requires principles that we apply equally to speech we favor and disfavor.

Press Passes:

The rule of law was vindicated after President Trump complied with a temporary restraining order – issued by a judge he appointed – requiring the President to restore the press access of three media organizations during the pendency of a trial on whether President Trump can revoke those press passes.

In an extraordinary move, President Donald Trump banned three news outlets – CNN, MS NOW, and Politico – from the White House grounds. Reporters’ access cards were denied, and the three media organizations filed a federal lawsuit against the President. Their complaint alleges that President Trump violated the due process rights of the outlets, by depriving them of a liberty interest without notice and an opportunity to be heard. The complaint also alleges that the ban is a retaliation for their constitutionally protected viewpoints, in violation of the First Amendment. In addition, although White House grounds are a nonpublic forum, such that the government has some control over access, the government cannot deny access on an impermissible basis like viewpoint discrimination. 

In response, the President argued a viewpoint-neutral reason for the revocation of access, which is that the publications are not maintaining a minimum of journalistic standards and are compromising a compelling interest in national security. The President’s response argued that these publications revealed information – including misinformation – that compromises national security interests, such as articles about White House construction.

Judge Kelly, a Trump appointee, granted a temporary restraining order, restoring the media access while a trial proceeds on plaintiffs’ claims against President Trump.  Judge Kelly held that plaintiffs are likely to succeed on the merits of their Fifth Amendment due process claim because the journalists have a liberty interest in their press passes that was revoked without notice. Judge Kelly was skeptical that national security interests were what truly motivated President Trump, given his statements on Truth Social.

Initially, President Trump did not comply with Judge Kelly’s orders.  After the Judge required an explanation of why the President had not restored press access, the White House reinstated press access.

I have serious concerns about media bias and professionalism of journalists. I have lost faith in many reputable news outlets after appreciating how they promote certain narratives and introduce their ideological biases into their reporting. Unlike President Trump, I realize that the solution to media bias is (1) a change in culture, where journalists pursue truth over their ideologies and ensure that they have accurately reported the facts, and (2) a variety of publications with different perspectives, yielding a complete picture of events, resulting in pressure on the media to convey events more objectively. 

There is no healthy democracy where the media serves at the pleasure of the President.  The President’s decisions appear to be made based on the viewpoint of the publications, if perhaps in addition to their standards of professionalism.  The United States, with our constitutional protections, cannot require the media to echo the positions or biases of the state, like Russia’s state-sponsored RT or Qatar’s state-funded Al Jazeera.

I have long thought, although there have been abuses of the law in many presidencies, that we are not in a constitutional crisis.  The fact that a Trump-appointed judge ruled against the President and then forced the President to comply with his ruling shows that we in this country still possess the privileges that many in the world do not. Of course, we must take those privileges seriously and call out abuses of government power, regardless of who is in power, at the federal, state, and local levels.

Cancelled Concerts:

U.S. rapper Macklemore was ousted as English singer Ed Sheeran’s opening act after Macklemore performed a song called Hind’s Hall (about the occupation of a Columbia building during pro-Palestine protests at Columbia) and encouraged his audience to chant “Free Palestine” at MetLife Stadium.  On Macklemore’s second night at MetLife, he accused Israel of genocide and reiterated “Free Palestine,” in addition to making other political statements. Macklemore claimed that New England Patriots owner Robert Kraft banned Macklemore from playing at Gillette Stadium and pressured Ed Sheeran to drop Macklemore from his tour. Ed Sheeran is now continuing his tour without his opening acts, who all dropped out in solidarity with Macklemore.

Legally, there is no First Amendment problem.  There is no state action, just private actors making decisions about who can perform in their venues. Of course, we as a society should care about free speech values, not just government censorship. When billionaires have control over who can play in their venues, and they exercise that control based on viewpoint, we should be concerned that successful artists do not reflect what society wants to hear but what stadium owners want to hear.

At the same time, Robert Kraft surely has First Amendment rights to decide what is played in the venues he owns.  Kraft has spent significant resources fighting antisemitism. Some Jewish audience members asked for refunds of their tickets because they did not expect an anti-Israel rally at their Ed Sheeran concert. Hind Hall is a song about the occupation of Hamilton Hall; this building takeover involved assaults on two janitors and swastika vandalism.  “Free Palestine” is a phrase that means different things to different people, but it is not unreasonable to think that it has antisemitic connotations; it is often uttered at American Jews who have expressed no opinions on Israel.  To some, the slogan is a statement of liberation for the Palestinian people, but to others it is a call for the destruction of Israel.  The chant is associated with the slogan “from the river to the sea, Palestine will be free.” This sanitized English chant is a translation from some versions of the Arabic, “from water to water, Palestine will be Arab (or Islamic),” a call to ethnically cleanse the last remaining Jews from the Middle East, as Jews have been cleaned from all surrounding countries.

In addition, over the past few years, Jewish and Israeli artists have been cancelled at venues and film festivals across the country and the globe.  Jewish comedians have been told that venues cannot protect them from violent protesters – a deeper First Amendment problem involving the heckler’s veto and threats of violence.  Jewish writers have been removed from arts festivals, and university departments have called for full boycotts of Israeli academics and universities.  These cancellations are at least as worrisome, from a free-speech culture perspective, but they do not receive the same outcry because the censorship is against a tiny, minority population.

Respecting free speech values requires a coherent, principled theory about when venues can determine who performs there.  If venues cancel due to threats of violence, that is the surest sign of a failing free speech culture, as mob coercion has suppressed individual rights.  To my mind, patrons and Ed Sheeran should have known about Macklemore’s stances, and cancelling the rapper has only amplified his message and revived his relevance.  My hope is that venues provide spaces for a variety of viewpoints, but also that the venue owners’ First Amendment rights to control the speech in their venues are respected. 

Academic boycotts and literary boycotts run counter to the purpose of art and research, which is to foster understanding of different perspectives – this seems fundamentally different than a concert.  What also concerns me, in addition to venue owners perhaps having outsized power, is the way artists feel pressure to echo the most popular positions and prevailing sentiment and are berated for not doing so. We live in a polarized world, and this is surely a polarized topic that could benefit from fewer slogans and more listening to others who don’t share our perspective.

The Constitution that Hasan Piker Says He Wipes Himself with May Save Him from a $150 Million Lawsuit

Hasan Piker can often seem to be a caricature of bad faith. That does not mean his speech is unprotected incitement. The two important legal questions in the Florida lawsuit by Larry Klayman against Hasan Piker are (1) will this lawsuit get to a jury and (2) what will a jury do if this case is not dismissed on First Amendment grounds. Klayman, the plaintiff, is also a controversial figure known, among other things, for his litigiousness and ethics violations.

In August of 2026, Piker stated to a large audience, “If Jews in America keep putting this idea out there that they are singularly invested in Israel, eventually someone is going to come around and take action, not against the state of Israel, mind you, but against American Jews.”  According to the complaint, this comment was not a “stray remark,” but capped off a years-long practice of hatred and calls to action against Jews and Zionists (supporters and inhabitants of the state of Israel). The allegations are laid out in the complaint, as is the uptick in antisemitic assaults and murders in the United States. Klayman, a member of groups targeted by Piker’s comments, is suing Piker for reckless endangerment, assault, and intentional infliction of emotional distress, with compensatory and actual damages in excess of $150,000,000.

I make no excuses for Hasan Piker’s content. He has praised China’s former leader Mao Zedong, who is widely considered responsible for over 40 million deaths due to executions, forced famine, and purges of his political enemies.  Piker has stated that his favorite flag is the flag of Hezbollah, an Iran-backed, Hamas-supporting terrorist organization.  Piker targets those who disagree with him, including a Vietnamese refugee who fled communism, with vulgar, demeaning, sexist language.  Piker has said “I wipe my ass with the Constitution.”  I imagine Piker will cite this document, which protects all of us, in trying to dismiss Klayman’s lawsuit on First Amendment grounds.

The fate of Larry Klayman’s lawsuit against Piker is not determined by whether Hasan Piker’s ideas are wrong, bad, or even harmful. (It is also not determined by what people think of Larry Klayman or his views).  Freedom is not about the collective; it is about the individual.

The law cannot silence ideas simply for being dangerous, nor can it attach civil penalties that chill speech.  Harmful speech is protected, out of a distrust for our government having the power to decide which ideas are acceptable in a free society.  Speech must fit into an unprotected category for civil lawsuits to pass First Amendment scrutiny. For speech to be unprotected incitement under the Supreme Court’s articulation in Brandenburg v. Ohio, it has to be directed at and reasonably likely to cause imminent lawless action.

In Brandenburg, a conviction against a member of the Ku Klux Klan’s speech was overturned because the Ohio statute punishing Brandenburg’s speech did not distinguish between incitement and “mere advocacy.”  The KKK had been speaking at rallies and producing films telling Black people to go back to Africa and Jews to go back to Israel, with some KKK members holding weapons.  In addition, Brandenburg said the following: 

“The Klan has more members in the State of Ohio than does any other organization. We’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.”

Brandenburg’s statement is, in structure and in some ways in content, similar to Piker’s.  If things keep going the way they are, someone might harm this group of people.  The Brandenburg Court did not directly address whether the statement should be deemed unprotected incitement, but Brandenburg’s conviction was overturned because the Ohio criminal statute was not narrowly confined to speech that rose to the level of incitement.  But Brandenburg’s statements, racist, terrible, and dangerous as they were, likely fall on the advocacy side of the line.

In some cases, courts have determined that a reasonable jury could conclude that speech rises to the level of unprotected incitement.   Several factions of the KKK have successfully been sued for incitement. In addition, the leaders of the Unite the Right rally in Charlottesville were liable for $26 million for engaging in civil conspiracy to commit violence. Speech that is directed at and reasonably likely to cause imminent violence will be deemed unprotected incitement.

There is a good chance that the Florida court will hold that Piker’s speech is not unprotected incitement. The lawsuit will then be dismissed. Piker’s comments may be directed at getting people to harm Jews or make them afraid to express their opinions – it’s unclear why he would say them otherwise.  However, his comments imply more of a vague threat than an imminent call to harm.  The standard for incitement is purposely high to allow a wide range of contested views into the marketplace of ideas. We only punish speech when it is imminently connected to criminal action.

Perhaps the court would hold reasonable jurors can differ on whether Piker’s comments rise to the level of incitement.  Then, a judge would send Klayman’s claim to a jury – in that case, Piker’s motives and the likelihood of harm coming to Jews, Israelis, or Zionists based on his comments and conduct would both be considered as a matter of fact by the jury. 

The irony is that Piker, known for espousing inflammatory views using noxious rhetoric, creates a world where people who espouse views he disagrees with are afraid to speak freely.  And now Piker, known for praising dictators and organizations that punish, kill, and torture those who do not echo their narrative, will be invoking free speech principles to save himself a lot of money.  The Constitution that he has decried has value, including protecting those who myopically reject its freedoms and structure.

The Bombing of Pan Am 103, the Murder of Charlie Kirk, Free Speech, 9/11, the Celebration of Death, and the Celebration of Lives

I recently watched Netlfix’s excellent series, “The Bombing of Pan Am 103.” This series has a 100% audience score on Rotten Tomatoes, likely due to its non-ideological, gripping, and sensitively-told dramatization of the bombing of a plane traveling from London to New York in 1988. A suitcase on Pan Am 103 containing a radio bomb killed all 259 people on the plane plus 11 people on the ground in Lockerbie, Scotland. After over a decade of investigations by law enforcement in England, Scotland, and the United States, two alleged members of the intelligence service in Libya were tried for this mass murder. Watching as a law professor, I noted the differences between this terrorist attack and the meticulous collection of evidence and arduous process to ensure guilt before these men could be convicted of a crime.

The bombing of Pan Am 103 can be designated a terrorist attack because it involves the purposeful targeting of civilians to effectuate a political aim — not a targeting of military assets, or a targeting of civilian infrastructure used as military assets, with unintended or collateral civilian casualties. The response to this terrorist attack, while surely imperfect, demonstrated important rule of law principles, including a lengthy investigation, counsel provided for the defendants, a trial accessible by the public, and efforts to prevent witness intimidation (some witnesses had to testify behind bulletproof glass). Ultimately, one of the men was deemed not guilty. The other, Abdelbaset Ali Mohmed al-Megrahi, who had lied about not having a false passport that he used to travel under a fake name to place the bomb in a suitcase in Malta, was convicted by three Scottish judges. (Not everyone believes he is guilty, or that the evidence was sufficient.)

Of course, no system is without major deficiencies. The FBI at first investigated a Pan Am 103 passenger, who emigrated to the United States with his parents from Lebanon, who was entirely innocent. His name was cleared, but the reputational damage to his grieving family in the United States remained.

Meanwhile, Abdelbaset Ali Mohmed al-Megrahi eventually returned to Libya to what many called “a hero’s welcome” and a cheering crowd. I have long associated the cheering and celebrations of civilian casualties with places, like Libya under Colonel Muammar Gaddafi, that do not respect the rights we cherish here, including due process and freedom of speech.

I fear we are becoming the sort of place where people celebrate the death of their political enemies, including civilians killed simply for exercising freedom of speech. I fear we are becoming a place where civilians are purposely targeted for their views, or people are killed without trial for behaviors the public has condemned.

Perhaps I am too earnest or too literal, but the jokes about the murder of Charlie Kirk, including jokes by those who style themselves as intellectuals, profoundly concern me. The thing I love most about this country is our robust First Amendment, which (although imperfect) guarantees us the right to speak freely no matter your views. It seems quite obvious that we do not want to become a society (and many exist) where people are killed for expressing objectionable views, creating objectionable art, or decrying things that members of the public find sacred or above scrutiny. The line between speech and violence is the line of freedom.

There are many people who, on a daily basis, share views – on a variety of subjects to extremely large audiences – that I find distasteful, illogical, immoral, wrongheaded, politically despicable, or even dangerous to me personally. I hope these people are shielded from violence, just as I hope people who agree with me and people who disagree but have totally reasonable and sensible views are shielded from violence. What is much more dangerous to me than any of their views is a United States where we condone the murder of people for their speech.

It is hard for me to understand celebration of the murders of Charlie Kirk, or Brian Thompson, or any other figure where people have eminently reasonable, serious objections, as anything other than failures of systemic thinking, principle, and humility. We have lost the ability or the desire to abstract away from people’s glee.  The deaths of those that many believe to be participating in oppression should trigger an appreciation of the more abstract principle that protects against systemic oppression – the principle that we do not resolve political disputes with tribal violence.

The celebrations of public assassinations of politically divisive people are also, of course, protected speech. I will defend people’s right to make the most distasteful (and sure, sometimes clever) jokes free from violence. It all just seems so shortsighted. Radicalization in the face of a flawed system seems to result from those entirely insulated from the dangers of a society that cheers death, tolerates terrorism over due process, and conflates speech and violence.

I remember 9/11 vividly. People working on a house near my off-campus place were listening to the radio, so my roomies and I heard enough to wake up and turn the television on to see a plane hit the second tower.  I remember still going to biology class, which proceeded as normal, and then going to lab before realizing that I should go home.  This was a much bigger horror than I had initially realized because the towers had come down.  I remember a scared friend trying to reach his father, who might have been in the Pentagon.  I remember my own father, stuck at airports.  I remember my grandmother, who lived in the Lower East side and saw the Twin Towers out of her window, thinking we were at war.  I remember the 911 calls of people who worked above where the planes crashed, who knew they were going to die.  I thought about their last moments, and the moments of those who jumped.  I remember the outstanding first responders and the pride and sadness I felt knowing the most heroic and the best of us are the ones who have to sacrifice.  I remember that a plane flew over me while walking around my college campus in Boston, and I wondered if that plane would crash down on me. I remember the beautiful stories of friendship and the sacred stories of people coming together.

I remember being told that large parts of the world thought “the Jews” did 9/11, and believing that was true in places where they don’t have free speech or information circulating sufficiently, yet not seeing real evidence of these conspiracies until recently. I remember the “let’s roll” hero from United Airlines Flight 93. I remember the anguish of the families of people affected.  I remember the companies that lost most of their employees. I remember wondering, naively, why anyone would hate the janitor and the trader and the CEO and the restaurant employee and the travelers and the police and the firefighters who all died together on that day. I remember learning why, and learning that the world is both simpler and more complex than I had realized. I remember the love those on the planes sent to their families. I hope that sort of love still exists today, in a much different world.

I remember. I hope we remain a society that largely celebrates life over death and rule of law over violence.

Musings on Individual Rights, Collectivism, and the Constitution

The current political races in the United States are tackling weighty, abstract, important issues – such as what economic theory should drive our laws and, more abstractly, whether society should revolve around individualism or collectivism. Our political leaders are addressing these issues head on. For example, in his New York City inaugural address, Mayor Zohran Mamdani said, “We will replace the frigidity of rugged individualism with the warmth of collectivism.” Last week, Secretary of State Marco Rubio made remarks regarding political terrorism where he delivered a rebuke of Communism (which is different, of course, than collectivism) that presented somewhat of the opposite perspective. According to Secretary Rubio, “The world [Communism] envisions is a world without courage, a world without creativity or ambition, a world without heroes or glory or great causes to strive towards, without – a world without miracles, without myths, without men who rise above the rest to do incredible and extraordinary things.” The big question that emerges is, should we incentivize individual will, distinction, and success or prioritize egalitarianism and social welfare.

The dichotomy is never as stark as it seems, however. All of our politicians, to some degree or another, support both individual rights and also serve the collective good. The Democrats and the Republicans both have positions that are more individualist and positions that are more collectivist – it just depends on what context. As examples, in general, Republicans favor their vision of the collective good when they discuss border security or public safety. Democrats favor their vision of collective good, in general, over individual rights when it comes to property rights. Regardless of whether you agree that these groups’ articulation of the collective good actually serves the public good, both parties frame some of their arguments in terms of the collective and some of their arguments in terms of the individual.

Our Constitution is generally an individualist document. Most apparently, the Bill of Rights is counter-majoritarian; it protects individual rights as against the collective will of the democracy. For example, the First Amendment protects freedom of speech for those with disagreeable, hateful, offensive, explicit, and what some might classify as dangerous opinions, so long as the speech doesn’t reach the high bar for incitement, true threats, defamation, or obscenity. No other country protects socially corrosive opinions to the same degree. The First Amendment also protects our ability to practice whatever religion we desire, or no religion. The combination of the Free Speech Clause, Free Exercise Clause, and the Establishment Clause means that, unlike many countries, blasphemy and apostacy cannot be punished.

The Constitution also protects criminal defendants’ due process rights. The Fourth Amendment means police generally need a warrant to search a home. The Fifth Amendment means individuals cannot be forced to confess to their crimes, and the Sixth Amendment means that the state must provide a lawyer for indigent defendants. These are all individual rights provided to us, sometimes at the expense of collective safety.

Reasonable people may disagree on how the courts safeguard these rights, but our constitutional republic was founded on a view that the rights of the individual often must prevail over the will of the collective. Of course, almost no one is an absolutist about this, and our jurisprudence reflects this. In moments of exigency, the police do not need a warrant. When national security is at risk, the courts are generally laxer about restrictions on speech or privacy. People are generally not entitled to practice their religion in a way that transgresses a neutral, generally appliable law – you cannot claim religious liberty, for example, to avoid paying your taxes or to assault others.

We live in a world where the left and the right increasingly polarize against each other, and social media inflames our divisions. There are real disagreements between politicians over when we deserve individual rights and when the needs of the collective should prevail. However, it is important to remember that, as long as we keep our constitutional safeguards, we can ensure some measure of individual rights as against tyranny. These individual rights can be safeguarded in a nonpartisan way, so long we do not cherry pick which constitutional rights should matter. This all may sound too idealistic, but, as Justice Oliver Wendell Holmes said about free speech and truth, “That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment.” In many instances, securing individual rights is the best way to protect the collective good.

Graham Platner’s Views on FDR’s Court Packing, Power, and Principles

[Edit: this post was published prior to Jenny Racicot’s and Lyndsey Fifield’s sexual assault allegations against Graham Platner, which led to Graham Platner’s dropping out of the race.]              

In an interview with Jon Stewart, Graham Platner, Maine Senatorial candidate, recounted a moment from Franklin Delano Roosevelt’s presidency that affected Platner’s own thoughts on power.  When the Supreme Court kept invalidating FDR’s economic reforms, FDR threatened to “pack the Court.”  Roosevelt wanted to add more Justices to dilute the votes of those deeming his economic measures and uses of federal power unconstitutional.  This threat alone may have led the Justices to start ruling in FDR’s favor and reverse course on their economic due process Lochner-style jurisprudence.  Politicians have to be creative, Platner said.  Surprisingly, after hearing Platner relate how FDR was successful in implementing his policies, Jon Stewart referred to Platner as having principles.  

In fact, Platner was exhibiting a lack of principles for favoring this Court-packing approach. The prioritization of pure power to achieve one’s political aims, by members of both parties, has led to the undermining of the Court’s legitimacy and independence.  Principles are about following rules designed to benefit everyone, including our political enemies, in the service of a larger, more abstract ideal.  Freedom of speech, even for speech we detest, is the ultimate expression of principle.  The principle here was an independent judiciary.  Roosevelt abandoned that principle; Platner praised FDR for it; and Stewart fawned over Platner.

Politicizing the judiciary and abandoning principles has led to a compromising of our constitutional order. Everyone recognizes in the abstract that it is wrong for politicians to influence judges’ interpretations of the Constitution, or for judges to rule based on their political preferences rather than honest readings of legal text and precedent.  Everyone condemns these behaviors when their political enemies do it.  What was surprising was the lack of recognition of how destructive abandoning this principle is when your own party wields that sort of power.  Graham Platner seemed to be taking cues about how to be a leader from FDR’s Court-packing strategy to implement the New Deal, which some argue helped get the United States out of the Great Depression and others argue prolonged the Great Depression.

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I first became aware of Graham Platner because of his past Internet activity and his Nazi tattoo. Platner, who said he didn’t know about the Nazi association with the tattoo while others dispute this, had the Totenkopf skull and bones for 18 years before covering it up when it came to light politically. Like his hero FDR, Platner may have progressive values with under- and over-tones of a certain type of bigotry. 

Roosevelt publicly condemned antisemitism while turning away boats of Jewish refugees back to their deaths during the Holocaust.  Roosevelt kept Jewish immigration way below quota for refugees trying to come to America, as the Nazis exterminated 66% of the Jewish population of Europe.  Roosevelt made private comments about how the economic dominance of Jews in Poland provoked the virulent antisemitism there. Roosevelt boasted to his own Jewish advisor about how he helped set quotas for Jews at Harvard when he was on Harvard’s Board of Overseers.  Jewish Americans were getting into Harvard based on academic excellence, even despite a lack of wealth, during a profoundly and tragically antisemitic time in the United States and abroad. Roosevelt did not approve of high concentrations of Jews at major universities. Roosevelt also, as one of the darkest aspects of his presidency, oversaw the repugnant internment of Japanese Americans and expressed xenophobia and suspicion towards Japanese people.

Perhaps a variation of Roosevelt is echoed in Platner. Platner has associated with antisemitic conspiracy theorists.  He also seems suspicious of achievement.  He told Jon Stewart that power is not just reserved for smart, special people.  The populist drive to redistribute social capital away from people who have earned it (in addition to those who have decidedly not earned it) has often seemed sinister to me. Both parties have, in their different ways, denigrated achievement and gained support by choosing in groups and out groups.  I find the different versions of populism on both the left and the right concerning.  The Platner/FDR implementation of this seems to lack awareness in how it contradicts their other stated ideals and principles.

And that’s just it. Graham Platner is Democrats’ hope for taking the Senate. People are willing to overlook his Nazi tattoo (it’s perhaps a plus for some). People are also willing to overlook his associations with and boosting of Holocaust-denying conspiracy theorists, his extramarital texts, and the fact that he claims to be working class while being born into money and attending prep school. Platner is also a military veteran who appears forthcoming, kind, articulate, and well read.  Maybe he is (although he doesn’t seem to have read sources that would dispute the narrative he’s built).

Platner’s discussions of creative uses of power may be necessary for some of the honorable goals he wishes to achieve.  But creative uses of power also have a sinister edge.  He was voted most likely to start a revolution in high school.  Because I study freedom, and law, and because I understand how lucky we are compared to much of the world to have the constitutional rights we do have, I understand that not all revolutions, or creative uses of power, are good.  Many are catastrophic. I think of the horrors wreaked by the revolution in Iran, bolstered by socialist ideals (although the socialists were killed once the revolution was a success) which has led to one of the most repressive, Holocaust-denying countries on the planet, a regime that represses its own wonderful people and shuts off the Internet to murder protesters. So it is important to elect leaders not just with values, but with principles about restraints on power.

The question is, how unprincipled have we all become, as a society. How much has the lack of principle of politicians on one side of the aisle created highly unprincipled people on the other, over and over again, throughout American history?  Can we ever get past a point where people mistakenly think they are being principled when they are actually willing to do whatever it takes in the service of their own political causes? Can we get to a principled place, or will this vicious cycle continue?

The Spokane 3, the First Amendment, and the Federal Conspiracy Statute

This blog post offers analysis on how the prosecutions and convictions of the Spokane 3, charged with conspiracy to impede federal law enforcement, intersect with the free speech rights guaranteed in the Constitution. Before I begin the analysis, I want to make a few notes. 1. Jac Archer, one of the three defendants in this case who did not take a plea deal and thus went to trial, is a graduate of Gonzaga Law School, where I teach. I never had Jac as a student in any of my classes and never knew them, but I have tremendous fondness for all Gonzaga Law students. 2. This blog aspires to objective legal analysis about important issues regarding what is and is not protected under the First Amendment, in addition to how prosecutorial decisions affect First Amendment rights.  3. I never attended this trial, so I am relying on media sources that describe the trial, in particular The Spokesman Review and Range Media.  To get a deeper dive into the trial, I recommend these sources.

Honest analysis of this issue requires a systematic look at the contours of the First Amendment, the motivations of prosecutors, and the implications of this trial on speech and protest. Ultimately, the Spokane 3 may have engaged in some conduct that was not protected under the First Amendment, and all three could potentially be criminally prosecuted.  However, their potential over-prosecution for federal conspiracy to impede or injure an officer has serious implications for future speech or protest. A skeptical look at whether defendants’ conduct meets the definitions of conspiracy and of force or threats in the charging statute is necessary.  United States District Court Judge Rebecca Pennell is considering a motion for acquittal in July, where she could potentially rule that neither a conspiracy nor the requisite amount of force were used by defendants to be convicted for federal conspiracy to impede law enforcement. My analysis is below:

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This federal prosecution stems from a protest inspired by former Spokane City Council Member Ben Stuckart (whose guilty plea for felony to impede law enforcement may be converted into a misdemeanor if he complies with supervised release conditions).  Stuckart posted in June 2025 on Facebook about a transfer of two Venezuelan immigrants to an ICE detention facility (Joswar Rodriguez Torres was later ruled illegally detained, Cesar Alvarez Perez has since self-deported). The Facebook post read:

“If you care at all about these illegal detainers you meet me at 411 West Cataldo by 2 p.m. I am going to sit in front of the bus. Feel free to join me,” he wrote. “The Latino community needs the rest of our community. Not tonight, not Saturday but right now!!!!

Some protesters who responded to the Facebook post blocked the ICE bus, joined hands to prevent the bus from moving, slashed the tire of a law enforcement vehicle, and, according to some testimony at the trial, engaged in aggressive and intimidating behavior towards law enforcement, sometimes blocking their pathways. Law enforcement unleashed cannisters of smoke and made arrests, some of which were described as violent and may have involved excessive force.  

The federal government tried the Spokane 3, “military combat veteran Bajun Mavalwalla II, activist Justice Forral and activist and Gonzaga Law School alum Jac Archer” under 18 U.S.C.§ 372:

 If two or more persons in any State, Territory, Possession, or District conspire to prevent, by force, intimidation, or threat, any person from  …  discharging any duties [ of the United States] thereof, or to induce by like means any officer of the United States to leave the place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties, each of such persons shall be fined under this title or imprisoned not more than six years, or both. 

There are two separate, but related, legal questions to analyze. The first legal question is whether the protesters were engaging in speech protected under the First Amendment; we cannot be prosecuted for protected speech. The second legal question is whether defendants in this case violated this particular federal conspiracy statute.

The behaviors described above are not protected speech. A protest may be deemed non-violent, but that does not make it “speech,” deserving of First Amendment protections. The First Amendment’s protections for speech distinguish speech from conduct.  Speech is communicative, not coercive.  Although speech may express dissenting, disagreeable, inflammatory, or even offensive views, speech does not prevent others from acting. Listeners are not coerced by speech, which is why speech is elevated above conduct. Blocking exits, preventing law enforcement from doing their jobs, and ignoring lawful dispersal orders when a crowd has become a danger are actions that can be legally punished. Protest often involves elements that are protected speech, including gathering legally, holding signs, even yelling expletives and phrases like “Fucking Nazis” at ICE Agents.  Protests can also involve elements that are not protected speech, including blocking roads, impeding law enforcement, blocking private property, vandalism, assaults, etc.

Of course, civil disobedience is an important part of the United States protest history and fights for justice. Civil disobedience, however, explicitly involves breaking the law and accepting punishment. Civil disobedience, by definition, does not involve protected speech – it involves unlawful conduct.  In a democracy, no individual or group can decide which laws are or are not just on issues like abortion, immigration, or environmental policy. Social and democratic dissolution – likely including erosion of our legally protected First Amendment rights – would ensue if everyone decided for themselves which laws we allow the government to enforce. If someone believes a law is unjust – and many of our laws have been unjust  — they cannot claim First Amendment protections for blocking enforcement of that law. Through the federal court process, Joswar Rodriguez Torres, one of the immigrants who inspired the protest, was later ruled to be detained illegally.

Despite the First Amendment not playing a direct role preventing the Spokane 3 from being charged under state law, federally overcharging protesters for conspiracy has great potential to chill protected speech. Specifically, the government should avoid creating definitions of “conspiracy” that would apply to any protest that later involves unlawful elements or parallel behavior.  Most protests involve some coordination; that does not make them conspiracies. The government should also avoid definitions of “force” that involve simply engaging in civil disobedience.  Prosecutors should use their discretion to ensure that our laws are respected while at the same time allowing robust breathing room for protest. Judges must be attuned to free speech implications. This case does not involve protesters blocking entrances to prevent others from exercising their speech rights, or protesters shouting down speakers, or any other clash of First Amendment values. Instead, this case involves protesters taking on the government, and the Spokane 3 may have been overcharged.

This charge, 18 U.S.C.§ 372, requires a conspiracy, or an agreement between two or more people, and “force, intimidation, or threat.”  A unanimous jury (some have reported the jury as all white, but this may not be accurate) convicted the Spokane 3 of different versions of this, although I believe Bajun Mavalwalla II was convicted only of aiding and abetting the conspiracy. For Judge Pennell to grant the motion for acquittal, she would have to find that, as a matter of law, the elements of this statute were not met. Specifically, she could find that there was no conspiracy or no force, intimidation, or threats. The judge is not permitted to re-weigh the evidence.  Jurors could go either way on many criminal cases. The judge can grant the motion for acquittal only if no reasonable juror could side with the prosecution, based on the evidence.

I did not watch the trial. Some evidence was presented of an agreement that technically could be a conspiracy, including using a bullhorn, linking arms, etc., although defense counsel presented this as parallel behavior. Parallel behavior is not conspiracy, but agreements and coordination can be. I am torn on this element.  Some evidence was also presented of force, including so-called aggressive stances by protesters. However, a jury would have to find force beyond a reasonable doubt.  Force, under this statute, cannot simply mean impeding law enforcement – otherwise the element of force in the criminal statute would be redundant. Criminal statutes are to be read in favor of defendants because of the risk of criminal punishment – this is termed the rule of lenity.

My hope is that Judge Pennell exhaustively reviews the evidence to ensure that there was enough evidence of conspiracy and of force to justify the extreme measure of a federal conspiracy charge, especially given the First Amendment implications. A judge cannot simply override the role of the jury, but there are important free speech and defendants’ rights reasons to not stretch the definitions of conspiracy and force beyond a formal interpretation.

Artificial Intelligence and Human Distortion

I gave a talk at UT-Austin as one of the non-resident fellows at the Bech-Loughlin First Amendment Center. The talk covers what AI is, how it differs from traditional algorithms, why it deserves First Amendment protection, and what we can do to prevent misinformation at scale. Those who came to the talk asked great questions! This will ultimately become a paper called Artificial Intelligence and Human Distortion, which also involves exploration of the First Amendment’s marketplace of ideas theory.

ICE and the Constitution: A moderate’s take on why the tactics of ICE have led to anti-American results 

I am not an alarmist. I do not like hyperbole, and I try to see issues from multiple perspectives.  Most issues are more complex than any given partisan framing. 

I love this country, and I love our constitutional rights. I tell my students that the United States has the most robust free speech protections in the world, and that is still true. I deeply object to the overuse of the word fascist, especially by those trying to shut down speech to which they object, or by those who disagree with legal government actions when their views are not supported by the democracy.  I object even more profoundly to comparisons to the Nazis, who intended to exterminate every Jew in Europe and succeeded in the millions (including murdering members of my family), and invaded other countries to kill their Jews.

And yet.  It is time for moderates to speak up about the erosion of our constitutional rights by ICE. It is time to take stock of the ways in which liberty, equality, and humanity have been degraded. It is time for people who disapprove of cynical comparisons to fascism to actually notice the similarities. It is time for lovers of this country to appreciate how un-American things have gotten. Candidly, it is past time.

For some context, I do not believe we will ever get to Nazi Germany, or even to Iran (who this year blacked out the Internet, murdered protesters, and then arrested the doctors who treated them). I do not believe we will get there in part due to people exercising their First Amendment rights to protest, speak out, and film ICE agents. President Trump has placed on leave the ICE agents involved in the killing of U.S. citizen Alex Pretti, likely due to public outcry. Greg Bovino has been removed as Border Patrol “commander at large.” The people keep the government accountable.  

The judiciary also keeps the executive branch accountable. A federal district court judge in Minnesota recently held that the President must release refugees admitted to this country legally whose cases are being re-examined. This will likely be appealed. The courts do not always issue rulings people prefer (disagreeing with a ruling politically or morally doesn’t make it legally incorrect), but the courts are processing ICE cases and blocking many of its illegal actions, such as placing children who turn 18 immediately into adult detention centers.

Of course, there is no right to block law enforcement from fulfilling its duties. A nation descends into lawlessness if individuals have unchecked ability to decide which laws they think are and are not acceptable, regardless of democratic will. Every country engages in immigration enforcement. ICE has a difficult job. Former Presidents have taken many of the same steps as President Trump, although with less pushback. There is also no First Amendment right to block traffic, to fail to comply with reasonable dispersal orders, or to assault officers. And there is no right to enter or remain in this country by evading immigration laws.

But it is how we treat even people who violate our laws that defines America’s character. It is the recognition that law enforcement must be fair, just, constitutional, and provide due process, even to potential lawbreakers, that should distinguish us.  It is the knowledge that most of our ancestors came here fleeing something, or looking for a better life, that should promote humanity of treatment. It is the awareness that we are a nation made stronger by immigrants that should help define us and even allow many who have built a life here and contributed greatly to stay. And it is the promise that First and Fourth Amendment rights supersede any political will that is that truly makes America great.

The following are examples of just a few alarming steps we have taken down the totalitarian path.

  • The Supreme Court, in a concurrence on a preliminary ruling on its emergency docket (not a final ruling) has cleared the way for ICE agents to, at least temporarily, use a combination of ethnic background, location, and place of employment to give agents “reasonable suspicion” to conduct a Terry-like stop and detain people, who must then alleviate that suspicion by proving they are citizens. If they cannot alleviate that suspicion, the officers use probable cause to arrest and detain people.
    • This has led to U.S. citizens, mostly non-white U.S. citizens, feeling like they must carry identification at all times (I remember a relative of mine, when I was a kid, jokingly doing an S.S. officer impersonation which went, “Mr. Goldberg, where are your papers…..”) My friends, who love this country, whose parents were immigrants, who are lawyers and law professors, fear having to prove their identity, and potentially not being believed, because they are not white. Imagine the fear of those who are not well versed in the law.
    • Indeed, U.S. citizens have not been believed and have been subjected to abusive tactics by ICE agents. This presents both Fourth Amendment unreasonable search and seizure and Fourteenth Amendment equal protection problems. The Supreme Court should retake this case when it is ripe for a final adjudication and prohibit this type of racial and ethnic profiling under the Fourth Amendment, especially where the bar seems to have been lowered on what is necessary to garner reasonable suspicion. Additionally, the Fourteenth Amendment guarantees equal protection under the laws, prohibiting explicit racial classifications, especially those based on animus.
  • Our public officials are making statements demeaning people based on their country of origin. President Trump called Somalis “garbage.” The President has free speech rights, and all of us should feel entitled to criticize a country or argue that we shouldn’t adopt its practices. Prosecuting people for financial crimes, like fraud, is also necessary (although it should be done even-handedly and not just against one’s political enemies, a sign of government corruption).  Criticisms of a country and its policies are very different than demeaning all of the people from that country, making sweeping generalizations, then turning extra law enforcement resources on that population.
  • ICE circulated a memo claiming that ICE can enter people’s homes, if there has been a final deportation order, without judicial warrants. Although this memo hasn’t been shared extensively within the department, it is being used to train new officers. If accepted by the courts, this practice would mark a major expansion into exceptions from the general requirement that judicial warrants are needed to arrest someone inside their home, unless the police can prove exigency like safety concerns or flight risk. Once law enforcement enters someone’s home, they can also seize evidence in plain view if there is probable cause to believe the evidence is connected to a crime (a lower standard than beyond a reasonable doubt). The home is considered sacred under the Fourth Amendment, and this expansion would have a dramatic impact on both non-citizens’ and citizens’ privacy.
  • Some ICE detention centers have conditions that are inhumane and over-capacity. People report, for example, sleeping standing up. If the government wants to treat immigration enforcement as civil, justifying not giving arrestees their Fifth Amendment rights against self incrimination, the conditions of confinement cannot be punitive and cruel.  
  • Targeted deportations based on speech may violate the First Amendment. There is wide discretion in decisions regarding visas and citizenship/removal under the Immigration and Nationality Act. There is also no free speech right to take over buildings or prevent others from exercising their free speech rights. Many governments in free countries deny visas to people based on views that country finds disfavorable. But our government may be purposely targeting people for deportation based on protected speech. Even if permissible under the broad, discretionary INA (although that may violate the First Amendment), it corrodes the pride we should all feel in living in the country with the most robust First Amendment protections. Our free speech jurisprudence is based on the “marketplace of ideas” metaphor, where, so long as everyone is permitted to speak freely without force or intimidation, the best ideas will emerge. The solution to offensive speech is more speech, not censorship.
  • Rogue officers exist in every legal and moral system. The way that an administration reacts to rogue officers –through investigation and perhaps prosecution if warranted – is what separates bad actors from a corrupt system. I have concerns that government actors, after ICE agents shoot and kill protesters or onlookers who are unarmed or have been disarmed –  distort the truth to impugn those who have been killed. (This is not a comment on whether the officers had a reasonable – even if mistaken – belief in imminent bodily harm, but every ICE shooting should be thoroughly investigated. If not, potentially rogue actors create a corrupt system.)
    • Truth is the antidote to authoritarianism, which is why authoritarian governments invariably engage in dramatic and often deadly censorship measures. Although both the left and the right, at various times and in different contexts, have spoken out against bringing guns to protests, our Second Amendment rights include, according to the Supreme Court, a right to individual gun ownership subject to some restrictions. The government’s first response to unarmed citizens who have been killed by our law enforcement, regardless of the circumstances, should not be to defame the victims.

Our country is premised upon the belief that “all men are created equal” and entitled to inalienable rights – this includes people accused of crimes, incarcerated people, non-citizens, and especially those who criticize the government.

To be clear, growing authoritarian tendencies are not the exclusive province of the right. I also fear the far left becoming more mainstream in the Democratic Party. Members of the Democratic Socialists, for example, also demonize groups they disapprove of and wish to expand state power in concerning ways. Left-leaning populism, if fully effectuated, will also lead to anti-American results, although it is not nearly as close to pulling on the levers of federal power at this point. This is not to create an equivalence, but to note that the farther President Trump’s administration takes us, the more he makes extreme left politicians look like heroes. The populist left and right are polarizing each other in ways that cannot be good for social welfare, public harmony, public order, or our constitutional protections for liberty and property (protected under the Fifth and Fourteenth Amendments).

It is time for moderates to speak up, for our Constitution, for our people, and for all people.