Steve Bannon will go to a low-security prison; DA Alvin Bragg wants to keep Trump gagged; Judge Aileen Cannon reportedly declined her colleagues' suggestion that she decline the Trump case
Gentlemen, you kinda whiffed it on the “stochastic terrorism” thing.
Stochastic terrorism is when a prominent figure makes an accusation against a person or group that a reasonable person would be horrified by, perhaps even provoked into violence. This gives the prominent figure a pass on responsibility when someone listens to them and commits violence on their behalf. For example, Bill O’Reilly incessantly called Dr. Tiller, an abortion provider in my hometown of Wichita, Kansas, a “baby killer” nightly on TV. That is, until Scott Roeder came into my family’s church and shot Tiller in the head. O’Reilly was not responsible for the crime. He was, however, responsible for encouraging it in the way he did.
Killing babies is an obviously reprehensible act. That’s not what Tiller did, but that’s the point— the accusation is a lie intended to provoke some random person (e.g. Scott Roeder) to act. What’s more, the false accusation instills fear in the recipient of the accusation (reasonably so), and that’s where the terrorism part comes in. Terrorism is not a crime per se, and calling something terrorism does not equate to attempting to curtail anyone’s First Amendment rights.
Terrorism is about instilling fear in a population by committing violence or threatening violence against that population, and stochastic terrorism fits that definition to the extent that accusing someone falsely of a horrific act can be viewed as threatening violence. An indirect threat, of course, and not legally actionable. But “terrorism” is used colloquially all of the time to refer to non-crimes.
It’s a useful term and concept, but I think you represented it in such a way as to unduly discredit it.
(Had Tiller not been murdered, he would’ve had a great argument for suing O’Reilly for defamation. I’m thinking of Alex Jones’s case, for example. But stochastic terrorism isn’t just about individuals— I think that calling all trans people pedophiles might fall under the same umbrella when that sentiment is voiced by a prominent figure with followers who might be prompted to act against the “pedophiles” on their behalf.)
I see where you’re coming from, and it makes sense from a moral/ethical perspective.
But from a legal perspective, none of this is relevant. What you’re describing is something which would potentially be incitement. Ken’s point is that under well-established 1A case law, these statements (as awful as they unambiguously are) are not close to the incitement line. Plus, calling them ‘terrorism’ (which also has a specific legal definition) tends to confuse people.
None of this means you’re wrong about the substantive ethical point. I’d argue you’re right! It’s just the narrow legal framework gets lost and people get mislead about whether such statements are protected by the 1A or not.
I’m glad you wrote this post. It’s important for us lawyers to remember that the world is much bigger than the legal concepts we use to analyze it.
I suspect that part of the reason for why healthcare professionals haven’t been outright murdered as a result of this fear-mongering is that it has worked so well on lawmakers. These lawmakers have wielded their power to squelch gender-affirming care in many states, doing the work of anti-trans “activists” for them. That might make it seem less necessary to resort to violent attack— but not totally unnecessary, clearly, because the bomb threats are still happening.
By contrast— in 2009, abortion was legal (god, I hate putting it in those terms). Nobody in government was passing legislation stopping Dr. Tiller from performing abortions, though protestors tried to do so (one of them shot him in both arms, prior to his actual murder). So there was a sense that abortionists were “getting away with it” that justified individuals attacking them (in their eyes).
Someday healthcare providers serving trans people will “get away with it,” but right now they’re not, because the law is punishing them. I cant prove this, but I suspect that laws based on moral panics cut down on “lone wolf” attacks at the expense of punishing every target of those moral panics using the power of the law.
I’m not familiar with how close the relationships between federal judges are, but could the suggestion to step aside have been given with the interest to protect Cannon’s reputation rather than an interest in the outcome of the proceedings?
Reading the NY Times story, I read it as two judges giving cautionary advice that this case will define her career and it might best to take a pass on a case like this while still new and inexperienced. If I were the Chief Judge of the district and I saw a politically-sensitive high profile case coming to an inexperienced colleague with little/no trial experience, I could see myself offering the same advice (judicial norms be damned).
To be slightly more serious, how long does a concept need to be around to be legitimate? Because terrorism scholars have been writing about stochastic terrorism at least as far back as the 80s.
Re: Cannon recusal, while NYT frames it's article in terms of Cannon's bias and inexperience, one of the judges is said (in the NYT article) to have suggested Cannon stepping aside due to venue, suggesting a Miami court, at least in part because it had a SCIF while Fort Pierce did not. This was not discussed on the show -- how does that impact Ken's take that this is norm-breaking.
Was suprised that we didnt get an episode earlier in the week, but thank you for holding off till the Rahimi decision, because I had not been following the post Bruen 2A jurisprudence much at all and was suprised to wake up this morning and see an 8-1 decision that massively clarifies Bruen.
The last two weeks have mentioned some strange crimes: conflict of interest, terrorism and influence peddling. Please explain what these are, so I will know if I might have committed them. I thought terrorism was any attack that a newspaper editor doesn't like. Influence peddling is a crime in Britain, but I don't think either party is interested in suppressing it here.
I disagree that Rahimi says much about Hunter Biden’s chances on appeal on his gun charge, which I think are as good as they were two weeks ago. The currently controlling case in the Third Circuit is Range where the court upheld an as applied challenge of 922 by a man who had a decades old conviction of some kind of welfare fraud. I work in a Third Circuit district court and the sense around here seems to be that Rahimi didn’t touch Range, because this decidedly nonviolent felon wouldn’t have been prohibited from owning a firearm in 1790.
In Rahimi, there had been a judicial finding that the defendant was violent, and the restriction was temporary (only as long as the restraining order was in force), which were both things Roberts discussed.
Here, the evidence shows that Biden admits he was an addict, so it could be that no finding is necessary. The question is still whether addicts are the sort of dangerous person that couldn’t have owned a gun in 1790, which is what it was under Range in any case.
SCOTUS has been holding a cert petition on Range for a year which they will probably vacate and remand in light of Rahimi because that’s that they tend to do in this sort of thing. But. The reasoning in Range looks like it would survive Rahimi, and is closer to Biden’s case than Rahimi was.
Great discussion. I can’t bring myself to read much about these absurd SCOTUS rulings. We don’t live in the 1790s. We live now, in a world with vaccines and anesthesias, the vote for women and Black people, and weapons of mass destruction that can be carried in a backpack! Gods save us from these corrupted justices.
The Supremes, on the same day that they struck down Chevron deference, admit that judges have no special competence to deal with homelessness. So they have no particular competence to deal with complex issues like homelessness.
“ Answers to questions such as what constitutes “involuntarily” homelessness or when a shelter is “practically available” cannot be found in the Cruel and Unusual Punishments Clause. Nor do federal judges enjoy any special competence to provide them. ”
But they are suitable to decide all challenges to federal rules and regulations without any deference shown to how and why the relevant agencies made them.
Though doubtless well intended, the Ninth Circuit’s Martin experiment defied these lessons. Answers to questions such as what constitutes “involuntarily” homelessness or when a shelter is “practically available” cannot be found in the Cruel and Unusual Punishments Clause. Nor do federal judges enjoy any special competence to provide them. Cities across the West report that the Ninth Circuit’s involun tariness test has created intolerable uncertainty for them. By extending Robinson beyond the narrow class of pure status crimes, the Ninth Circuit has created a right that has proven “impossible” for judges to delineate except “by fiat.” Powell, 392 U. S., at 534. As Justice Marshall anticipated in Powell, the Ninth Circuit’s rules have produced confusion and they have interfered with “essential considerations of federalism,” by taking from the people and their elected leaders difficult questions traditionally “thought to be the[ir] province.” Id., at 535–536. Pp. 24–34.
i genuinely appreciate the drilling down on ~STOCHASTIC~, but IMO *unpredictability* is a slightly more relevant term than "randomness". (if the real sticking point is whether or not it could be proved that the freak would not have freaked if the demagogue hadn't said the irresponsible horseshit)
i figured the point that the episode was making was that there's no smoking gun in "ranter rants → followers do crime" ... although if anything, the nature of the last several gag orders against Trump's freeze peach do seem to have "could reliably be predicted" baked in. assuming the person in charge of such gagging isn't in the "J6 was a SorosFBIantifa op to make MAGA look bad" camp, of course.
i don't disagree with anything in your response so i don't know what you were disagreeing with. presumably it's my usual problem of trying too hard to phrase things precisely, thereby torturing economy of language.
I think Wade and Willis recognize the historic nature of this case. However, I think in their heads that justifies any of the messy aspects of the case and think anybody coming after them. You see it when Wade does these interviews, or that Willis testimony that went viral on resistance twitter. The standard refrain seems to be "they did bad things, so stop asking me"
Gentlemen, you kinda whiffed it on the “stochastic terrorism” thing.
Stochastic terrorism is when a prominent figure makes an accusation against a person or group that a reasonable person would be horrified by, perhaps even provoked into violence. This gives the prominent figure a pass on responsibility when someone listens to them and commits violence on their behalf. For example, Bill O’Reilly incessantly called Dr. Tiller, an abortion provider in my hometown of Wichita, Kansas, a “baby killer” nightly on TV. That is, until Scott Roeder came into my family’s church and shot Tiller in the head. O’Reilly was not responsible for the crime. He was, however, responsible for encouraging it in the way he did.
Killing babies is an obviously reprehensible act. That’s not what Tiller did, but that’s the point— the accusation is a lie intended to provoke some random person (e.g. Scott Roeder) to act. What’s more, the false accusation instills fear in the recipient of the accusation (reasonably so), and that’s where the terrorism part comes in. Terrorism is not a crime per se, and calling something terrorism does not equate to attempting to curtail anyone’s First Amendment rights.
Terrorism is about instilling fear in a population by committing violence or threatening violence against that population, and stochastic terrorism fits that definition to the extent that accusing someone falsely of a horrific act can be viewed as threatening violence. An indirect threat, of course, and not legally actionable. But “terrorism” is used colloquially all of the time to refer to non-crimes.
It’s a useful term and concept, but I think you represented it in such a way as to unduly discredit it.
(Had Tiller not been murdered, he would’ve had a great argument for suing O’Reilly for defamation. I’m thinking of Alex Jones’s case, for example. But stochastic terrorism isn’t just about individuals— I think that calling all trans people pedophiles might fall under the same umbrella when that sentiment is voiced by a prominent figure with followers who might be prompted to act against the “pedophiles” on their behalf.)
I see where you’re coming from, and it makes sense from a moral/ethical perspective.
But from a legal perspective, none of this is relevant. What you’re describing is something which would potentially be incitement. Ken’s point is that under well-established 1A case law, these statements (as awful as they unambiguously are) are not close to the incitement line. Plus, calling them ‘terrorism’ (which also has a specific legal definition) tends to confuse people.
None of this means you’re wrong about the substantive ethical point. I’d argue you’re right! It’s just the narrow legal framework gets lost and people get mislead about whether such statements are protected by the 1A or not.
I’m glad you wrote this post. It’s important for us lawyers to remember that the world is much bigger than the legal concepts we use to analyze it.
I suspect that part of the reason for why healthcare professionals haven’t been outright murdered as a result of this fear-mongering is that it has worked so well on lawmakers. These lawmakers have wielded their power to squelch gender-affirming care in many states, doing the work of anti-trans “activists” for them. That might make it seem less necessary to resort to violent attack— but not totally unnecessary, clearly, because the bomb threats are still happening.
By contrast— in 2009, abortion was legal (god, I hate putting it in those terms). Nobody in government was passing legislation stopping Dr. Tiller from performing abortions, though protestors tried to do so (one of them shot him in both arms, prior to his actual murder). So there was a sense that abortionists were “getting away with it” that justified individuals attacking them (in their eyes).
Someday healthcare providers serving trans people will “get away with it,” but right now they’re not, because the law is punishing them. I cant prove this, but I suspect that laws based on moral panics cut down on “lone wolf” attacks at the expense of punishing every target of those moral panics using the power of the law.
So does this mean you are revoking Nathan Wade's Senate Twink Memorial Award for Belatedly Good Judgment?
Yes!
Fantastic episode as always.
I’m not familiar with how close the relationships between federal judges are, but could the suggestion to step aside have been given with the interest to protect Cannon’s reputation rather than an interest in the outcome of the proceedings?
Reading the NY Times story, I read it as two judges giving cautionary advice that this case will define her career and it might best to take a pass on a case like this while still new and inexperienced. If I were the Chief Judge of the district and I saw a politically-sensitive high profile case coming to an inexperienced colleague with little/no trial experience, I could see myself offering the same advice (judicial norms be damned).
It's only stochastic until the militia neighbors wave their guns under your you nose egged on by multiple GOP officials since the 60s.
But all words/concepts are made up.
To be slightly more serious, how long does a concept need to be around to be legitimate? Because terrorism scholars have been writing about stochastic terrorism at least as far back as the 80s.
Re: Cannon recusal, while NYT frames it's article in terms of Cannon's bias and inexperience, one of the judges is said (in the NYT article) to have suggested Cannon stepping aside due to venue, suggesting a Miami court, at least in part because it had a SCIF while Fort Pierce did not. This was not discussed on the show -- how does that impact Ken's take that this is norm-breaking.
Was suprised that we didnt get an episode earlier in the week, but thank you for holding off till the Rahimi decision, because I had not been following the post Bruen 2A jurisprudence much at all and was suprised to wake up this morning and see an 8-1 decision that massively clarifies Bruen.
The last two weeks have mentioned some strange crimes: conflict of interest, terrorism and influence peddling. Please explain what these are, so I will know if I might have committed them. I thought terrorism was any attack that a newspaper editor doesn't like. Influence peddling is a crime in Britain, but I don't think either party is interested in suppressing it here.
I disagree that Rahimi says much about Hunter Biden’s chances on appeal on his gun charge, which I think are as good as they were two weeks ago. The currently controlling case in the Third Circuit is Range where the court upheld an as applied challenge of 922 by a man who had a decades old conviction of some kind of welfare fraud. I work in a Third Circuit district court and the sense around here seems to be that Rahimi didn’t touch Range, because this decidedly nonviolent felon wouldn’t have been prohibited from owning a firearm in 1790.
In Rahimi, there had been a judicial finding that the defendant was violent, and the restriction was temporary (only as long as the restraining order was in force), which were both things Roberts discussed.
Here, the evidence shows that Biden admits he was an addict, so it could be that no finding is necessary. The question is still whether addicts are the sort of dangerous person that couldn’t have owned a gun in 1790, which is what it was under Range in any case.
SCOTUS has been holding a cert petition on Range for a year which they will probably vacate and remand in light of Rahimi because that’s that they tend to do in this sort of thing. But. The reasoning in Range looks like it would survive Rahimi, and is closer to Biden’s case than Rahimi was.
Great discussion. I can’t bring myself to read much about these absurd SCOTUS rulings. We don’t live in the 1790s. We live now, in a world with vaccines and anesthesias, the vote for women and Black people, and weapons of mass destruction that can be carried in a backpack! Gods save us from these corrupted justices.
The Supremes, on the same day that they struck down Chevron deference, admit that judges have no special competence to deal with homelessness. So they have no particular competence to deal with complex issues like homelessness.
“ Answers to questions such as what constitutes “involuntarily” homelessness or when a shelter is “practically available” cannot be found in the Cruel and Unusual Punishments Clause. Nor do federal judges enjoy any special competence to provide them. ”
But they are suitable to decide all challenges to federal rules and regulations without any deference shown to how and why the relevant agencies made them.
From: Legal Information Institute <news@lii.mail.cornell.edu>
Date: June 28, 2024 at 09:07:28 PDT
Though doubtless well intended, the Ninth Circuit’s Martin experiment defied these lessons. Answers to questions such as what constitutes “involuntarily” homelessness or when a shelter is “practically available” cannot be found in the Cruel and Unusual Punishments Clause. Nor do federal judges enjoy any special competence to provide them. Cities across the West report that the Ninth Circuit’s involun tariness test has created intolerable uncertainty for them. By extending Robinson beyond the narrow class of pure status crimes, the Ninth Circuit has created a right that has proven “impossible” for judges to delineate except “by fiat.” Powell, 392 U. S., at 534. As Justice Marshall anticipated in Powell, the Ninth Circuit’s rules have produced confusion and they have interfered with “essential considerations of federalism,” by taking from the people and their elected leaders difficult questions traditionally “thought to be the[ir] province.” Id., at 535–536. Pp. 24–34.
Am I the only one who keeps hearing Josh say it "sex party meeting"?
I once saw a newspaper article where it was spelled X-party.
You are not the only one.
i genuinely appreciate the drilling down on ~STOCHASTIC~, but IMO *unpredictability* is a slightly more relevant term than "randomness". (if the real sticking point is whether or not it could be proved that the freak would not have freaked if the demagogue hadn't said the irresponsible horseshit)
i figured the point that the episode was making was that there's no smoking gun in "ranter rants → followers do crime" ... although if anything, the nature of the last several gag orders against Trump's freeze peach do seem to have "could reliably be predicted" baked in. assuming the person in charge of such gagging isn't in the "J6 was a SorosFBIantifa op to make MAGA look bad" camp, of course.
i don't disagree with anything in your response so i don't know what you were disagreeing with. presumably it's my usual problem of trying too hard to phrase things precisely, thereby torturing economy of language.
I think Wade and Willis recognize the historic nature of this case. However, I think in their heads that justifies any of the messy aspects of the case and think anybody coming after them. You see it when Wade does these interviews, or that Willis testimony that went viral on resistance twitter. The standard refrain seems to be "they did bad things, so stop asking me"