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Dean from UWF College of Arts social sciences and Humanities and on behalf of the college it's my very great pleasure to welcome you to this year's installment of the settlement First Amendment lecture series which is an initiative of the Reuben of the acid Department of government since the conception of 2009 the settlement First Amendment lecture Series has fostered dialogue about First Amendment issues by United University and local community a meaningful conversation we aim not only to promote a robust discussion but like the freedom is protected in the United States we hope this opportunity for free discussion will also promote understanding and friendship among our fellow citizens this lecture series is made possible by a generous gift from the jng and Fred K Sullivan endowment as a Jewish immigrated from Nazi Germany in 1934 Fred Fred Sullivan cherished the freedoms protected by the First Amendment of the United States Constitution having experienced the challenges of a Nation at War Fred Sullivan understood the dilemmas that Nations like the United States face and protecting these freedoms while conscious and our liberties are always fragile Mr Sullivan believed that the continued protection of Freedom requires strong institutions of government respected by its citizens the hope of the Sullivan family is that this series will Foster a deeper discussion among the community faculty and students particularly as the students prepare to lead a world well they will have to discern what is right and just now let me turn it over to Dr David Ramsey who is the chair of the Reuben of the Askew Department of government

thank you

thank you John

just a moment I'll introduce our speaker but first I should make a few uh reminder announcements uh of course you would want to silence your phones at this time um secondly maybe more more importantly it's our practice in the department when we have these lectures uh that we after a guest speaker comes that that we purchased the speaker to take questions yeah that's a good idea yes okay so um he's preparator marks he's going to say some things you have work to do too about giving you homework or words speaking I'd like you to think about what your question is what it is that his uh his prominence his ideas have prompted in your own mind uh if there's something Central to the idea of the First Amendment it's that there's this movement between questioning and answering that goes on in the body politic and we want to embody that with flexor series like this so please um think about what your question there will be a enough time for you to ask a question um to say a few things about our speaker Dr Mark raber is the University system of Maryland's Regents professor of law uh at the University of Maryland Francis King Carey school of law but before teaching in a law school he taught with political scientists like that yeah himself

um and he's so his career not just in scholarship but also in practice he's tread the line between the study of law and the study of politics he's going to live alongside both lawyers and and scientists and um and I think his his Corpus his body of work he's certainly is more than 100 books and articles and chapters and there's there's a lot there but the big idea really is to show the ways in which the questions and politics and the questions of law interpret each other and uh to our own students we take constitutional law at the University he's known to them primarily as one of the editors of uh of the textbook that we've been using since about 2017. um it's called American constitutionalism it's put out by Oxford University press some of those students got to meet Dr Graber earlier this afternoon and uh ask him their questions but a few more we'll have questions they've been thinking about since audience um let's see what other things are going to tell you all right a few more uh in 2016 Professor Graber was named the Region's Professor he's one of only seven regions podcasters in the history of the University system of Maryland he did put in his time as an administrator he had three years as an associate Dean before returning to the Back Lane and uh one of the things that I promised my attention was his his role in hosting what's called very formally I think this is the formal the law school shoes right the Constitutional law she moves where he would invite guest speakers into the law school's campus just to talk about what's going on in the country issues arising in politics uh honestly wouldn't be hard-pressed to name a constitutional question that is not at one point or another attractive to thought and intention of Professor great word it's my pleasure to introduce him to our community please join me in welcoming Professor Morgan

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I'd much rather read the very nice things people have said about me just to in case you didn't get it the first time but thank you so much for inviting me into your community different people expect different things out of their jobs for a scholar there is no greater honor just to have people sitting listening to what you have to say and to follow Professor Ramsey asking questions that can challenge you sharpen your thought and make it better I'm particularly honored to be part of a lecture series sponsored by Jane and Fred Seligman that it is interesting that they chose after escaping from Nazi Germany a free speech lecture series because in fact Americans and people around the world had two different reactions to Nazi Germany the first was to distinguish ourselves from Nazi Germany we see this in Robert Jackson's opinion in the flag salute case Barnett where he says they have mandatory salutes we have free speech we're different than they are but in fact Nazi Germany also inspired the leading understanding of restrictive Free Speech within a democracy that is largely the leading understanding in Continental Europe it's sometimes called militant democracy and the idea is the problem with Nazi Germany is they could have restricted the Nazis someone told the story someone had an opportunity to shoot Hitler well their version is we had an opportunity to ban Nazi speech we didn't look what happened and so in fact democracies should ban parties who announced they do not want to play by the academic rules and this debate goes on and it is the Legacy of Jane and Fred Seligman that we will have versions of this debate today because we'll see it's actually a debate within the Republican Party that passed the 14th Amendment there are times in people in the Republican party you said what our United States is committed to what it means not to have a slave system is that all people get to express their ideas the abolitionist and the slave holder and another strain of the Republican Party said no sometimes in emergencies democracies require a clamping down of the speech of insurrection and that's what we're going to talk about and we're going to particularly talk about what I thought was one of the most obscure provisions of the Obscure provisions of the 14th Amendment so for those who study constitutional law for all practical purposes the American Constitution until about three years ago had an ellipsis it's that 14th Amendment section one section one contains the citizenship clause all people born or naturalized in the United States are citizens of the United States and of the state where they reside and that's important section one contains the privileges and immunities clause the due process clause the equal protection clause and those clauses are the source of about 90 percent of contemporary civil liberties constitutional law that if you understand section one you basically understand modern civil liberties then we sometimes time five section five says Congress shall have the power to implement these Clauses by appropriate legislation we read Section Five by the way say congress shall have the power to implement or enforce section one by appropriate legislation because we never talk about sections to three and four turns out I have a book coming out this summer that one of its arguments is outside of one person in Congress they were deeply concerned with sections two three and four and not at all concern with section one well just briefly since I piqued your interest I hope a little bit section two says that if any state

disenfranchises a percentage of their male population for reasons other than participation in the Insurrection or crime they lose a percentage of their votes in Congress and in the Electoral College so if you're South Carolina you disenfranchise old African Americans who are half your population you used to have 10 seats in Congress 12 voting Lester College 10 seats plus two senders now you only get five representatives and seven votes in the Electoral College and the idea was very simple the South would be put to a choice you do not enfranchise African Americans well if you do not enfranchise African Americans you will not have the votes necessary to control the national government you win franchise African-Americans you enfranchise half the population of South Carolina the problem is that half of the population is going to vote Republican so you now have the numbers but in fact what you get is extra Republican votes regardless of what the South does Republicans control the national government skipping section three for a second section four says no one May pay Confederate War debts no one may pay to compensate a slave holder for an emancipated slave and the United States is obligated to pay the public debt something that may come into play in the next months but the idea here was to economically wipe out the affluent class of the South that was heavily invested in slaves and Confederate war bonds but now we get to the topic of today Section 3 of the 14th Amendment just want to read it in the best dramatic reading voice I have which is not a very good voice but no person shall be a senator or representative in Congress or elector of President and Vice President or hold any office civil or military under the United States or under any state who having previously taken an oath as a member of Congress or as an officer of the United States or as a member of any state legislature or as an executive or judicial officer of any state to support the Constitution of the United States shall have engaged in Insurrection or Rebellion against the same or given Aid or Comfort to the enemies thereof but Congress May by vote of two-thirds of each house remove such disability well rather than quiz you right now on a provision that has more commas than ever can be justified the simple version for today if you held a civil or military position past or present in the Federalist state government and you participated in an Insurrection against the United States you were barred from holding present or future office that's the simple version of it so if you are a lieutenant in the army you are the undersecretary of state and you participate in an Insurrection you instantly lose your office and you're disqualified for a future office and I quite literally finished a chapter in a forthcoming book that begun section three is even more obscure than the other obscure provisions I finished that chapter I have the time stamp on January 3rd 2021

three days later there was change the first sentence the Insurrection of January 6th occurred and suddenly a great moment in my life legal historians became popular I mean this is for those who want you know we all get our 15 minutes of fame and this was going to be my 15 minutes of fame because people wanted to know was January 6th an insurrection against the United States

is the president an officer of the United States subject to disqualification under section three

make courts enforce section three in the absence of a federal statute and today's question May one engage in insurrection or Rebellion or give Aid or Comfort to insurrections by speech in other words can a person be disqualified if all they did was speak now we've had two sets of Trials on this the first was a number of members of Congress Madison cawthorne who were not there they did encourage to some degree and the lower courts that her disqualification said no their speech was protected first thing I am absolutely confident about is they got the Contemporary law of advocacy correct the Contemporary law highlighted by a case called Brandenburg versus Ohio says you need five things

you need incitement it's not enough to say I think the Insurrection is a really good thing you must in some ways speak in ways that bypass rational facilities it's sort of kill now if you say all bank tellers really deserve death that's advocacy kill the bank teller now incitement it must be imminent you must it must be a legal action it must be likely to occur I like the likely to occur because nothing no one ever listens to what I say and so I can always defend whenever I say is I didn't think it would occur must be serious and it's very clear that people speaking about taking action to stop the steal whatever you think of stop the steel whether you're for it or against it but people who said things on January 3rd January 4th wasn't the media it wasn't going to happen immediately wasn't really incitement more advocacy and so in fact there was no disqualification I said I think one they got free speech law correct and I'm a good civil libertarian and I thought it's not simply they got contemporary Free Speech law correct but it's a good law we ought to punish the people who act we ought not punish the people who simply spoke now there was one person less fortunate Man by name of Chloe Griffin I should add as a matter of matter I was the expert witness in the case Mr Griffith was a commissioner in New Mexico which is a state office and he was there

on the grounds urging people to attack police officers but here we might make a difference between people who on January 3rd said stop the steal and indeed urge some violence against Congress and people who were there on the grounds urging violence and one way of understanding Free Speech rights is you have free speech rights when you speak at a time you're allowed to speak in a place you're allowed to speak in a manner you're allowed to speak you don't have free speech rights when you speak at a time you're not allowed to speak in a place you're not supposed to be in a manner you're not supposed to have so I'll give two examples and I hope to convince you they're obvious you have a right to attempt to persuade me to abandon my Jewish faith and say become a Christian you have that right in the public sphere you have no right to trespass on my house when we do our Friday night service and enter my house illegally and talk about the merits of your chosen religious faith it is aggravating to your trespass that you are not simply trespassing but you are trying to convert my children in a place you have no right to be Maybe according to First Amendment law you have the right to Advocate that all bank tellers should be shot but if you are in the middle of a bank robbery and you have a gun and you announce all bank tellers should be shot you have no First Amendment right again you're right simply differ are you in a place you are entitled to be and the January 6 protesters were not in a place they were entitled to be when you're not in a place you're entitled to be the world is different well as I was there one of the features of a good scholar is on the rare moments you engage in real world performance you always think what is there of academic interest that disqualifying president Trump is of interest to the general population okay but what's of interest to the four Scholars I talked to regularly and that's the way my mind works and For Better or Worse that's what you're going to hear because I hope to teach you something persuade you about something but not do something and I want to be very clear want to teach you as I hope I've done a little bit of about contemporary Free Speech law I want to teach you a little bit about free speech in the 19th century want to teach you a little bit about the history and original understanding of section three I hope to persuade you that applying history is far more difficult than the Contemporary Supreme Court and a great many people believe that even when it's fairly obvious what the framers would have done in their time it's very difficult to figure out what that means for our time I have no interest in persuading you that any particular official ought to be disqualified now there's the elephant in the room there is Donald Trump and a lot of things I'm going to say are relevant to Donald Trump but there is one thing I'm not going to say and that's important that is there are fact disputes about what Donald Trump knew what Donald Trump did what other members of The White House knew what other members did I'm a legal historian I read the news I form my opinions just like you do but I have no special Authority that I can tell you and stand up here and say you know I got this generous introduction from Professor Ramsey listen to me Donald Trump is guilty or he's not guilty when I talk about the 19th century I hope to live up to your kind introduction but not when I talk about the facts of January 6th well what was the understanding of free speech in the 19th century and in figuring out that understanding we run in to a very basic problem is it turns out a great many people in the 19th century were exactly like a great many people in the United States and throughout the world namely they wanted to protect speech they liked and didn't want to protect speech they didn't like and the distinctions they made when they made distinctions are unhelpful so consider the debate first over the Sedition Act of 17 98. the ACT punished false scandalous or malicious writings against the government but truth was a defense and jeffersonians objected vehemently

to that position but one reason why they objected they said the national government should not restrict speech it should be the states not particularly helpful in thinking about free speech another reason they objected as they said our speech is true

your speech is false not particularly helpful in thinking about free speech sometimes jeffersonians announce broader standards Free Speech means opinion is protected then when jeffersonians were in charge in the states they prosecuted opinion not particularly helpful now the Republican Party which framed the 14th Amendment is a bit more helpful in the following way there is a strong Republican Free Speech tradition in fact the Republican Party wins the mark Graber Award for best campaign slogan in 1856 Free Soil free speech free labor free men Fremont in nine words you got the entire Republican platform and their candidate I defy any slogan ever since to capture a party so vividly but notice that free speech was a part of the Republican platform and why were Republicans so committed to free speech because they believed slavery could not exist in a society in which slavery was openly debated and they had a history of repression of Republican speech just to go through that history a little bit

in the early 1830s there was an effort to prohibit abolitionists from mailing anti-slavery platform anti-slavery pamphlets South

Republicans or they were not Republicans In 1832 but anti-slavery Advocates said the Postal Service ought to mail everything protected by the First Amendment

pro-slavery Advocates said no either this is not protected by the First Amendment the states get to choose what we will mail the post office can simply say this is too dangerous even if it is protected but there was a fight and for the longest period of time the post office would not mail anti-slavery pamphlets South

the first amendment in addition to free speech gives people the right to petition Congress so anti-slavery advocates begun to petition Congress to restrict speech for many years Congress responded with the gag rule that said no petition will be read or acted on that wants us to ban slavery and again Republicans they weren't Republicans then anti-slavery Advocates said this violates the petition Clause because the right to petition at a minimum means the right to consideration doesn't mean you have to agree but you can simply say if the petition is on this subject we just go like this

during this time period many Southern States imprisoned African-American semen free the rule was if you were say British you want a ship that was trading with Charleston when the ship docked all the African Americans were in prison a number of prominent Northerners came down to protest they were politely told that if they didn't leave town they would be murdered again anti-slavery Advocates said free speech

Free Speech wasn't all that popular in the North abolitionist found that mobs destroyed their presses and in one case murdered man named Alton Lovejoy and abolitionist editor

Southerners demanded that northern states adopt law as restricting free speech and finally when there was a Republican Party there was the struggle over Hinton helper

Hinton helper very interesting and interesting belongs in quotation marks person he was typical of the western Virginians and the Appalachians who oppose secession these people hated slavery but not for abolitionist reason they hated slavery because they hated persons of color the problem with slavery is a involved persons of color they didn't want but hidden helper wrote a book that basically said you know we could be a wonderful place a lot of Industry if only we got rid of slavery the book was banned all Republicans wrote a letter endorsing the book Congress attempted to pass laws Banning the books so we have a history of Republicans and anti-slavery fighting for free speech and this history had very important consequences consequence number one as the slogan of 1856 suggests Southern repression of free speech was high on the Northern critique of the South indeed if you read a great many republican speeches you will be rather confused because you will think the real problem with slavery right is the violation of the rights of African Americans not exactly the most brilliant thing I said but those speeches spend at least as much time on what's really wrong with slavery is look at the harm it does to us white people and one of the harms is we can't speak freely and in fact during the 39th Congress numerous Republicans get up and complain about the repression of the speech of white unionists and Northerners who have gone South to make a living and their speech is being repressed and so one of the consequences of this there is a question even though the 14th Amendment doesn't recognize explicitly free speech is Free Speech one of the privileges and immunities of citizens of the United States is it one of the Liberties protected by due process of law there was a controversy over which provision there is no controversy among historians over the substantive rule the Republican Party intended to protect free speech in the 14th Amendment and it's because of this history

isn't this good but now

there's the flip side and the flip side is reflected in a case it's very well known to law professors called ex-party McArdle it's a case that actually deals with Federal jurisdiction which I'm not going to worry about the more crucial thing is the case arises because William McArdle is the editor of the Vicksburg times William McArdle is the least likable defendant of the times he is an out and out racist his editorials vary

kill African Americans who act uppity sometimes he writes that editorial and by the way the term African you can figure out the substitutions kill Union Soldiers who are interfering with our wonderful life and sometimes he takes the double shot and particularly kill and really kill painfully African-American Union Soldiers many of which are in Mississippi at the time he is arrested now notice under a modern conception of free speech probably protected no Republican thought he was protected Republicans were the party of protestant morality

anti-slavery speech was protected because anti-slavery speech was moral speech for republicans it's they were very much an Evangelical movement but other forms of speech Republicans obscenity no no this is the time when we start to get upscenity laws and Republicans they have no problem with that they have no problem Banning Mormon speech because speech advocating or saying you can marry more than one women how one would do that I don't know having right just the experience of one and you know three door that's enough Brigham Young had 12 wives and 37 kids I don't know how he did it um but Republicans would not allow that speech and they would not allow speech favorable to the South during the Civil War members of Congress who supported said the South was right to succeed were expelled Clement Melinda cam was sent to Congress assisted Congress to Canada the Chicago Times was shut down it is Abraham Lincoln said we punish the deserter why should we not also punish the agitator who induces a person to dessert and everybody in the government in most professions had to sign loyalty Oaths and you could be fired for your government position for saying happy birthday Jefferson Davis this by the way is not just an amusing example no there are a number of cases I have looked at the records people were fired for wishing Jefferson Davis happy birthday

or my favorite because this is a precursor to article three man named Thomas he's a general in the Union Army was elected to the Senate from Maryland he had apparently difficult relations with his son wanted to join the Confederate Army by all indications Thomas pleaded begged whatever

but son says no I'm going and Thomas says okay if you get into trouble here's a hundred dollars not just the father he was banned from the Senate because he gave Aid in Comfort to a confederate soldier

so we see in the Republicans it's also it's free speech for me but not necessarily for thee our speech falls into the protected categories anti-slavery speech is protected because we are articulating moral truths anti-slavery speech does not threaten insurrection but it's unclear whether the Republican Party as a whole had a consistent comprehensive understanding of free speech so now we get to section three Section 3 again says you're disqualified from office if you participated in the insurrection well what's the point

the point is to neuter the slave holding Elite Northerners had a theory of the slave power it's by the way very similar to a theory a lot of liberals have about Donald Trump not all well it's really Donald Trump and Fox News

Northerners believe that most Southerners at Hearts were northerners the problem was there was a slave holding Elite that dominated the median politics and if you could just get these people out of the way you would have a reasonably racial egalitarian South right if Donald Trump and fox if Donald Trump just disappeared and Fox News was off the air the core of the Republican Party would just move where the Republican Party would go back to its normal anti-communist business party and you could decide whether you like that or not but the Trump movement would disappear in Fox News just decided no we're going to run NFL all the time and we're losing money on politics

so this was the theory and it was a civil penalty not a replacement for criminal penalties so what's what's an insurrection and what does speech have to do with it well an insurrection involves four things

first you need an assemblance but an assemblies before the 19th century simply means more than one people we are an assemblage the first row your an assemblance two of you you're an assemblance second thing the assemblage has to be committed to preventing the implementation of any federal law notice a very important thing I didn't say overthrowing the government preventing the implementation of any federal law so one of my experiences of Pensacola is Pensacola has a problem that all of us have right the parking is miserable I'd like you to imagine the parking laws come from the federal government if you are trying to prevent the implementation of the federal parking laws in Pensacola you have met the second element of an insurrection three by force or violence Force doesn't mean you have to hit somebody if you simply and you know we look like a tough crowd right if we simply stand outside maybe a couple people hold the bat a couple people have rocks and we just look tough and we scare the police officer off well we've just met the force or violence requirement there need not no one need die no one be Gets Hurt No Rock needs to be thrown as long as there is forced violence intimidation we meet the last criteria is the most tricky for a public purpose if we are out there preventing people from enforcing the parking law because we simply want a good parking space to you know eat in a downtown restaurant that's a private purpose but if we are down here because we believe the parking laws are immoral that's a public purpose so to give actually an example from The Trial one of the important parts of my testimony was if the January 6 protesters invaded the white house because they wanted to sell furniture on Ebay that might be horrible but it's a private purpose but if they were there because they believed the election had been stolen doesn't matter whether the belief is true or false that is a public purpose

now the question of speech is

who participates and the answer of the 19th century is is anyone who is lead as an American League National League I apologize by pronunciation it's not as good as it should be if you assist in any way knowing what you're assisting if you give a drink of water you are lead and crucially Justice Benjamin Curtis says you are Lee if you speak influential persons cannot form associations to resist the law by violence excite the passions of ignorant and unreflecting or desperate men incite them to action and then retire and wait the result of the violence which they have caused those who have wickedness to plan and incite who perform any part however minute are deemed just as guilty as if they were present and this is Justice Benjamin Robert Curtis this is quoted throughout the Civil War if you urge people to be part of an insurrection you were guilty of the insurrection so in fact it appears that speech is an element of crime so now I want to get the question we know that's what they thought

what do we think and one notion is we simply reject originalism because we say Okay that was then this was now we Simply Better but another question is can we actually apply can we Translate what they did in their time to our time and I want to start with a simple problem in translation and that is before we talk about free speech I want to talk about witches

because there's a witch in this room I want us to figure out who the people in Salem Massachusetts in 1693 would think is the witch in this room and okay I'm hoping nobody believes in witches people walking around this is I'm a little worried

but remember what Originals would say is well we have to imagine

We Believe in witches so let's all imagine we believe in witches but now in doing that we have to imagine that we believe in the Supernatural and we have beliefs about science that most of us don't have so we have to throw out those beliefs as well

well as we all know right only women can be witches or at least the vast majority that we're going to have to do some gender discrimination here I'm sorry

but of course most of us regardless of what we think of the latest feminist pamphlet most of us do not have 1693 ideas about gender and sexuality so we have to throw those out

moreover particularly guys how do we know a witch we just know because we get a feeling in our gut but you can only get that gut feeling if you truly believe in witches otherwise in our world we have different names it might be something else that we can identify that Freud might tell us but they don't have access to Freud and what I want to capture is even though we can say the good people of Salem believed in witches even though we knew who they thought were witches we can't possibly figure out that if the good people of Salem came here today and we said there were two witches in this audience identify the two we can't figure out yeah people are pointing I know but we can figure out who they would point to now let's move to free speech something called the fighting words Doctrine stems from a case called chopinsky versus New Hampshire where it says words that would cause the average man to fight are not protected and this is crucial particularly triplinski is 1942 but fighting words in many ways is crucial in the 19th century because there are two things that are very true about the 19th century the first is Men drink the second is men fight men don't need much excuse for drinking in fact part of the reason why is it turns out for sanitary reasons the beer is a lot more healthy than the water and Men Who Drink don't need much excuse for fighting so if you insult someone that's a breach of the Peace

and the point is one to preserve the peace into a regulate offensive speech now here's our problem

we don't believe people should fight for 99 to 100 of the insulting things about them I I asked my classes

um are there anything if you're a parent as my actually Grandfather said to me when somebody calls you this you have to fight my mother took me aside and said no which is I think actually important but it turns out for us there are almost no words so what do we do one thing we can do is we can say well if this would have caused the average man in 1874 to fight we can prohibit it another thing we can do is well if this would cause the average man in 2013 to find notice we're skipping women altogether if this would cause the average man to fight do it the framers don't tell us

they assumed that men would drink and fight they didn't live in our world with our values and we can't translate all we can do is choose one strand or another well now let's go to insurrections

few things we need to know about insurrections one if you look at the speech of presidents of members of Congress in the 19th century insurrections are common they are present they are deeply worried about them and everybody knows the standards it's rather interesting I went through a 19th century textbooks every one of them has a section on treason and insurrection

we don't live in that world now nobody 's textbook including mine has a section on treason or insurrection one interesting consequence of that is when you were engaged in the Whiskey Rebellion which wasn't Insurrection you knew exactly what you were doing it was an insurrection

is black lives matter and Insurrection when people protest outside of Supreme Court Justice home is that an Insurrection maybe so maybe not but they have no consciousness of it so is the world different when everybody knows this is an Insurrection subject to these penalties or we're in a world where people don't have a clue did Section 3 presume you knew what an Insurrection was because we don't here's another problem it's one of the reasons why the world of the 19th century government is fragile and also government is distant for most people particularly those who live in rural places

you do not encounter the government or laws on a daily basis you don't even encount them on a weekly basis and sometimes a monthly basis

if there is an effort to prevent implementation of a federal law it's probably an effort directed at the only federal agent in the community and the only law the community is really worried about

well whatever you think of government if you're a Libertarian or a socialist right there's a lot more government in everybody's lives you cannot and this is a you're at a public university so it really but even if you're not you cannot walk four feet can I go 15 minutes without running in to the government

so if people are resisting one of the infinite laws that government has and doing so by resisting one of the infinite employees of the federal government are they doing the same thing as people doing an Insurrection before again that's not a decision the framers can help us with they can sort of say yeah in our times we were really worried about this should you be really worried we don't know we don't live there speech to begin with people have a lot more vehicles for speech that they couldn't understand one of the interesting features of speech in the 19th century is speech is effervescent you speak if nobody writes it down

and nobody acts on it within a minute and a half it's gone

it's not the internet where someone can read what you said three years after you said it it's gone speakers have different relationships to Their audience it must be a personal relationship I must be in physical proximity to you to speak to you so when Madison cawthorne speaks he's miles away from the stop steel movement is that the same thing framers don't tell us

so it's not simply the case as some people want to argue that originalism shouldn't be applied because we have better values than they do it's that inevitably in applying originalism to these problems we do our values because we can't understand what the framers thought unless we immerse themselves in their world but their world is not our world everything is different or at least too much is different and inevitably we find ourselves making our own judgments now in the one thing I'll leave you with is here are my judgments

I don't like treason because it is speech I do believe in speech I don't think we should punish people who incite insurrections punish the insurrectionists on the other hand here's a way of reading section three if you are a member of the government you have no business inciting violence against law enforcement or put it simply the average citizen might be able to say you know man the barricades trespass but not the chief of police if the chief of police urges people to violate laws by force of violence we ought to fire the chief of police if an officer of the United States urges people to resist the laws of the United States by force or violence they have every right to do that as a citizen of the United States but no right to be an officer of the United States at least in my opinion thank you very much

thank you I always have one of my scarier moments while people are thinking of questions I I gave a talk in Washington State and we were just so impressed there were like a thousand students and they had been ordered to come and we each give our presentation and the professor sent any questions and a thousand students walked out and they're about two people left in the audience so when you do that I always have the trauma of that moment

my own sense first the word alarm given my politics most of the things president Trump said most of the time alarmed me um and they they continue to do so and you can disagree um uh with that as members of the audience I continue to think and hear I would want more evidence because I emphasize this is not my area of expertise and I haven't done the research but based on a lot of things I would say a good deal of what president Trump said ought to be protected by the First Amendment if a private citizen said them this is once again time place and manner that the rule which I think is a good one and that is in many ways it's from Brandeis if there is time to correct the speech we're all out for the speech so if I tell you guys right now we ought to just overturn the cars that are in the parking spaces we want there's still time for Professor Ramsey to get and said not the best idea and I do think for whatever Trump said there was time for someone else to say not the best idea what alarmed me and why I am for disqualification pending either you could persuade me otherwise on facts is that the chief law officer of the nation ought not be saying these things again my chief right there were lots of things we might say are protected when said by a private citizen but the chief of police is not allowed to tell people to break the law

and I think it's actually what I like about section three being disqualification is okay there's no criminal penalty you can go on with your life with simply saying if you believe that the law may be resisted by violence you can't be an officer of the government unless and here we might think of people who urge that slave laws that people use violence when freeing slaves that we might say you know what Congress could actually decide that this was sufficiently moral that two-thirds of us will say guess what you can be in office but unless you can persuade two-thirds of both houses of Congress that this was an incident where violence to the law was justified you want to be a private citizen that's my own View and again it depends on facts and I have not I was quite deliberate when I testified that I said I was not going to testify as to whether anyone was innocent or guilty though it turned out to defendant asked me what do you think and the third time he asked me I said okay you really want to know what I think here's what I think um don't if your lawyers don't ever ask an expert witness that question never never but I I read the papers as all of you read the papers and I'm not prepared to debate with you exactly president Trump's statements I read the Congressional glow 39th Congress as I suspect none of you have read That's my area of expertise

this actually goes on to a different hobby horse but it is one I've been riding on I have a volume called constitutional democracy in crisis we actually had the meeting to start the second edition last week where we asked leading experts of countries across the globe including the United States to talk about the status of constitutional democracy in their regime so the first thing I want to say is a lot of what you're talking about isn't simply an American problem uh talk to the Israelis talk to the Brazilians talk to the Turks talk to Great Britain talk to India talk to Australia yeah and in fact All Of You the country all of you are most concerned with it's not going well outside of New Zealand I'm trying to push for a chapter of New Zealand and someone said okay why do you guys you guys seem to have it right yeah why so that I mean there's General problem here part of the problem is I'd almost urge you to go online it's one of the virtues of online and start reading newspapers in the 1840s if you think this bile going on in social media no 1840 newspapers can teach you a thing or two why the 1840s the 1850s were the last era that is as hyper partisan as ours part of the reason why newspapers in 1950 are Tamers the era was not as hyper partisan now I think there are problems with Hyper partisanship I think that it's one of my functions as an academic to tell the history and not to tell the history that says everybody's out of bounds it turns out there you know guess what there are some people who are out of bounds but I do think politics needs to be toned down and the Civil War to some degree is a a lesson that we can't afford a politics that is hyper parts and one of the problems I'll add it deals with a simple feature I take it most people in this room wouldn't want to election when someone says on my side of the fence I'm a family person I'm running for election no you're not because if you were a family person you would never put your family through this yeah no okay but you know we laughing giggle but we have the costs the emotional costs of campaigning in the 21st century is so high it takes a certain kind of person to do this and chances are this person is very good at campaigning and chances are this person actually isn't as good as governing so one of the things about Abraham Lincoln that's underestimated is there isn't simply inspiring rhetoric turns out Lincoln was pretty good at governing

turns out there were other people Republicans um in my book I want to highlight Thaddeus Stevens and what I and in many ways there is occasionally insulting lines about Charles Sumner here's the difference between them both of them were militant abolitionists Charles something would just give glorious abolitionist speeches insulting everybody and the result was you read a Charles Sumner speech and you think well you know maybe I'm not an abolitionist it's just it's a turn off Thaddeus Stevens was the master manipulator he had one question on his mind how much can I get but at times you see him telling the more Radical Republicans guess what I have worked my rear end off the last month we don't have the votes for this we have the votes for this and in fact we would have gotten a better 14th Amendment if some radicals had just simply listened to Thaddeus Stevens and there was an earlier version of 14th amendment that failed that was much stronger and Stephen said this is the best we can get and by the way if we delay we're not going to get any better we might get worse they said we don't believe you we're hanging out for principal and they got something worse so part of it is also understanding you know on abortion

it may be worthwhile for everybody to say you know here's the best we can get the best we can get isn't unregulated abortion the best we can get isn't a ban on abortion Nationwide what can we get that reflects our viewpoints but treats all people with dignity and that's a question too many ambitious politicians don't ask but we're now strayed long past my 19th century expertise which is why I wanted to talk about that is Stevens

I don't like the fire in the theater metaphor and here's why I know what you're trying to grasp but someone in the back yells fire first row are you going to conduct an investigation or you're going to scram

in other words a feature of fire in the theater is you have you can act on it or you can investigate but understand you might die if you investigate

so this is in some sense we might say a feature of the act that it really means people rational people would choose not to investigate whereas with anything Trump says the election was stolen the election was stolen leaves people with the option of investigating go fight leaves people with the option of investigating now we can say the crowd is sufficiently worked up that what Trump has done is bypass people's rational facilities but it's actually a different act then the yelling fire because the fire is that we the first row made a rational choice they did the right thing they scrammed they didn't investigate

whereas incitement is an effort to get people to make irrational choices and the question is whether that can be done and again I really think responsibility is different if you are a private citizen then when you are an officer of the government particularly if you're the chief law enforcement officer of the government

I thought the other expert witness at the trial I was at offered a great explanation and remember I said the third element is you're attempting to achieve your goal by force or violence so now we can compare two kinds of movements I was involved as a law student in a protest when Jimmy Carter sought to reinstitute the draft and we had a meeting and one of the goals of the meeting was to minimize to prevent people from engaging in any illegal action we were of the impression that a legal action would diminish our cause now it turns out you can't control everybody yeah but we can now distinguish between a movement where you see the leaders everybody stay in line everybody chant together put down that rock and somebody throws a rock they're not representing the movement they ought to be arrested and let me tell you that being involved these movements we're happy you arrest this person whereas other movements the goal is to achieve by force or violence so to take a very simple example one of the early insurrections in American history the whiskey insurrection they don't show up at the tax collector's house and say we'd like to have a conversation with you about the principles of federal taxation

yeah and oh darn you see the Fred is carrying a knife we try to talk about it but we can't we'll try to protect you no they're there with knives rocks that's the object so it really and this is why I said it's a fact question

is the movement primarily interested in simply saying is most moves are look there are a lot of us who really don't like this law is that their main message there were a lot of us who feel strongly about that and what we might call intimidation by voting is legal you don't do what we want to do we're going to vote against you that is something that is not an Insurrection that's democracy we are allowed to show to go into the street and say there are a lot of us it is when it is not simply the resporatic violence because when you get 10 000 people in the street somebody's going to break the law but when the movement says that's what we're going to try and do we're not going to try to persuade that we're simply a big group and we're right we're going to try it and intimidate you now we're in Insurrection land

well first we'll remind the point of remember is something Alexander Hamilton wrote which is freedom and liberty require a strong government

because if you cannot simply if you cannot walk the streets at night if you are fearful to walk the streets at night what does it mean to say you're free you really can do it so we need a strong government to enable us to do safely what we want to do we need a strong government to give us the capabilities so we can do things we want to do if you don't know how to do something you're not free to do it now so we have a government that is under your definition say we have a set of government officials Florida as well I I want to push it past Florida just because I don't know the details right group of government that's an assemblance

they are seeking to prevent

the execution of federal voting laws

second standard

by force or violence it doesn't matter whether they are sanctioned by the governor of the state any more than Confederate troops that were sanctioned by the governor of the state had an excuse for a public purpose namely to secure the dominance of say a particular faction so that meets the definition of insurrection now again I don't want to get into a fact discussion because I don't know the facts but that that's right that's

there were insurrections all over the Reconstruction South that fit your description

services I've got to teach on Monday

oh yeah no I mean this is well at the risk of getting myself arrested now for something else when no no when I teach the history of obscenity law you know it was sort of like the the law used to be can Inspire impure thoughts among the highly susceptible and I then said there's a certain 15 year old boy that everything inspires impure thoughts with and and so this lecture uh for some people in the class this lecture on the law of obscenity is inspiring impure thoughts I'm in trouble and one may say the same with Insurrection in part of the lesson of your question and it's a good one not a bizarre one is how much we are dependent on good faith law enforcement yeah that is there are common sense distinctions that we all know and one of the risks uh hyperpolarization or of being out to get people is we stop using or pretend to stop using basic common sense

but we're dependent yeah

try to be poison because the interesting feature is somewhere around this time I decided the book I was writing was too long cut a lot of chapters for a book and one of the chapters I cut was the section three chapter which will not be in the book coming out but in a future book and then I went on my Merry way being an obscure 19th century historian and then in fact I believe in April a number of people contacted me and said I understand you actually know something about section three that you're one of two people in the country who's actually researched it was this an insurrection

some public interest group started research and then those groups got in touch with me and I said well that in some sense being the academic well well that's interesting and I discovered that there hadn't been anything written on insurrection since 1945 and what was written was wrong and begun to dive in to the literature I started off saying probably and then when I read at least the 19th century literature what surprised me and stunned the interest groups because it was better than they could ever hope for and I did not know this was going to happen coming in was it became clear in the 19th century and during the Civil War and Insurrection was not simply an overthrow of the government but an Insurrection was violent and resistance to any law and so I said the good news is you no longer have to say on an Original's perspective that they were trying to overthrow the government they were resisting the Electoral count Act

that I did not expect to find

I expected their notion of insurrection would be broader than our notion but just how broad it was because again it's a very interesting comment about the nature of the world

in no con law textbook that is taught to more than two classes in the United States is there a section on treason I then went and hit some magic words and there's Elizabeth Bauer has a very good doctoral dissertation in 1930 the legal treatises of the 19th century so I went to Bauer looked at every one of those treatises and there was a 20-page section on treason and insurrection

very different world

okay uh have people there the convictions are sedition which is a cousin of insurrection because that's what the federal law says now with respect to the protests outside of the justices homes

again I don't know the facts I would want to know precisely what was said in fact because obviously first of all there's a question of do they have a right to be there there are places they have a right to be in places they don't have a right to be if they're in a place they have a right to be it almost certainly protected they're in a place they don't have a right to be what you want to know is whether what they're saying is reasonably likely to sufficiently intimidate a Justice so as to change the justices vote so to give an example I think it is extraordinarily rude impolitic whatever word you want to interrupt a Justice's meal to tell the Justice you disagree with the judicial decision by the way I also think it is counterproductive productive on the other hand you stink Justice Alito said at dinner

it's not an effort to change Justice alito's decision it's an effort to make him feel unhappy if however and this is why I said it's a fact if people are outside and it's clear the effort is we're going after your children if you don't change the vote yeah that's an insurrection they're attempting to resist or interfere with federal law by force or law file it's an assemblies for a public purpose so again you know I don't want to go into facts because I don't know the facts and I'm reasonably confident we can dispute them but I can tell you if this is going on it's not an Insurrection if that's going on it is

sedition here I'm not actually sure and the reason why is I'll simply say is the people who have been punished have been punished under a criminal statute Section 3 is a civil penalty I've been studying the Civil penalty I don't precisely know what the elements of sedition are I think they're very similar I have a suspicion it's not quite identical but I haven't been called to consult and I I simply haven't looked it up and I apologize but I don't know

there was only one person who is so far been disqualified there is an absolutely brilliant judicial opinion unparalleled in American history it is also the only judicial decision in American history that's ever cited me frequently and so I'm inclined to think that's a really good decision but right now there's only one now I suspect it will not be the only one and we'll have to see because the answer was in terms of physical presence there appears to be only one person under section three who was physically there and this person what can I say he's just not the sharpest he took videotapes of himself to impress people yeah this this was not really the best idea here I am robbing the bank whoops absolutely

okay well thank you all of you

okay thank you very much tonight [Music]

okay

thank you