This morning the news was all full of Trump walk-backs. Did Donald Trump charge his predecessor with wiretapping him? Oh no, don't take him literally, says Sean "Lying Lackey" Spicer. Oh no, says Kellyanne "Alternative Fact" Conway, urging us to parse the Unhinged One's tweets for when and when not he used quotation marks in smearing President Obama.
Just another day in Trump America.
You probably have heard the phrase, Shouting fire in a crowded theater, and know it is not protected by the First Amendment.
The Wikipedia entry on the subject says this about the meaning and source of the phrase:
"Shouting fire in a crowded theater" is a popular metaphor for speech or actions made for the principal purpose of creating unnecessary panic. The phrase is a paraphrasing of Oliver Wendell Holmes, Jr.'s opinion in the United States Supreme Court case Schenck v. United States in 1919, which held that the defendant's speech in opposition to the draft during World War I was not protected free speech under the First Amendment of the United States Constitution.
The paraphrasing does not generally include (but does usually imply) the word falsely, i.e., "falsely shouting fire in a crowded theater", which was the original wording used in Holmes's opinion and highlights that speech that is dangerous and false is not protected, as opposed to speech that is dangerous but also true."
"Speech or actions made for the principal purpose of creating unnecessary panic." or "Dangerous and false."
It is beyond question that some lies (e.g., perjury, consumer fraud, filing a false police report, forgery) are not protected by the First Amendment.
18 U.S.C. 1001 makes it a crime to "knowingly...make any materially false, fictitious or fraudulent statement" to a federal agent. This provision, which was the downfall of a number of well-known defendants from Martha Stewart to Governor Blagojavich, has been upheld by the Supreme Court. Even a conviction based on the answer of "no" to a question from a federal agent, when the actual answer is "yes," has been upheld by the Court (Brogan v U.S.)(1998).
Further, lies to get money (consumer fraud, etc.) are generally punishable.
Are lies to distort the public conversation especially when perpetrated by the President less harmful and, therefore, less deserving of punishment? Are there other arguments for being more protective of politically-motivated lies?
James Comey, the director of the FBI, asked the Justice Department to answer Trump's claim that former President Obama ordered Trump's phones to be wiretapped. Even for Trump being labelled a liar by a major federal agency would be a first.
Similarly, the Senatorial Intelligence Committee, under Senator McCain, has asked that Trump hand over his evidence that his allegation is true.
The allegation, of course, is not true and is unsupported by evidence, that too should be a scandal on a major scale. This is the kind of accusation that, taken as part of a broader course of conduct, could get him impeached. Are there other charges that could be made too?
We shouldn't care that the allegation was made early on a Saturday morning on Twitter.
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March 14, 2017
