Marc O. DeGirolami is a law professor at St. John's University and author of The Tragedy of Religious Freedom.
MD is on target, except where he says "Trump, too, is responsible". There is no excuse for judges to judge based on their personal agendas.
Something ugly is happening to the First Amendment. It is being contorted to enable judges to protest Donald Trump's presidency. The perennial impulse of judges to manipulate the law to achieve morally and politically desirable ends has only been exacerbated by the felt necessity to "resist" Trump. The result: Legal tests concerning the freedoms of speech and religion that in some cases were already highly dubious are being further deformed and twisted.
Welcome to the rise of fake law. Just as fake news spreads ideologically motivated misinformation with a newsy veneer, fake law brings us judicial posturing, virtue signaling, and opinionating masquerading as jurisprudence. And just as fake news augurs the end of authoritative reporting, fake law portends the diminution of law's legitimacy and the warping of judges' self-understanding of their constitutional role.
Those who try to police the relentlessly transformational projects of constitutional progressives had much to dread from the Obama administration, an inveterate ally of the legal left that did what it could to graft the aspirations of progressives onto the Constitution. But Trump's presidency may be even worse, because too many judges now feel called to "resist" Trump and all his works—no matter the cost to the law's authority and to the integrity of the judicial role.
In one recent deformation, Trump was sued for incitement to riot and assault and battery when, at a campaign rally before he became president, he said "Get 'em out of here" in response to protesters in the audience. Several of these protesters were subsequently pushed and struck by others in the crowd. A Kentucky federal district judge ruled that the case against Trump could proceed because "Get 'em out of here" could reasonably be interpreted as an exhortation to attack the protesters.
The most astonishing part is the court's conclusion that the statement is not protected by the speech clause of the First Amendment because it is plausible to think Trump was inciting a riot. Though the court cites the highly speech-protective test from Brandenburg v. Ohio, in which the Supreme Court held that the freedom of speech does not permit the government "to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action," it mangles it. What part of "Get 'em out of here" could plausibly be interpreted as advocating illegal activity, rather than a call for the assistance of security officers? Where is the explicit advocacy of illegality?
Brandenburg involved a KKK member advocating on film the possibility of "revengeance" against African Americans and Jews, along with other hateful speech. In an earlier case, Terminiello v. City of Chicago, a rabble-rousing priest whipped up an angry throng to confront an enraged mob, shouting: "[T]here will be violence. . . . We will not be tolerant of that mob out there. . . . We are going to stand up and dare them to smear us. . . . We don't want them here; we want them to go back to where they came from." In both cases, the Supreme Court held that these words were constitutionally protected free speech. Neither what Trump said nor the context of his speech is even in the same universe.
And yet this district court found a way to rule that the president of the United States might be deposed on the question of incitement to criminal violence because Trump had on some other occasions "condoned violence," and because had Trump actually wanted the assistance of security officers to remove the protesters, "Trump would have instructed the intervening audience members to stop what they were doing."
It is not possible to explain this jaw-dropping ruling—one that flies in the face of binding Supreme Court precedent—without reference to extra-legal factors: the desire to embarrass the president, for example, or to create mischief for him, or to signal opposition to him. That Trump had previously "condoned violence" is irrelevant to whether he incited a riot at this rally. It is highly relevant, however, if one's purpose is grandstanding to injure a political opponent.
An even more appalling specimen of fake law has been generated by Trump's executive order restricting entry into the country by nationals of six foreign countries for 90 days and suspending refugee admission for 120 days. In one court order, a Hawaii federal district judge rejected the government's claim that the six nations posed special security threats (on this, the Trump and Obama administrations are aligned) and concluded that the order violated the establishment clause. Relying principally on obscure dicta from Justice David Souter's opinion for the Supreme Court in McCreary County v. ACLU (2005), the court held that the "unique," "remarkable" "historical context" of the order, "full of religious animus, invective, and obvious pretext," tainted it with anti-Muslim bias and therefore evidenced a purpose to make a law respecting an establishment of religion.
The court pointed to campaign statements by Trump that "Islam hates us" and by his "surrogate" (a media term appropriated by the judge) Rudy Giuliani's description of a campaign conversation with Trump about a "Muslim ban" to justify its holding. This executive order was narrower than its predecessor—but somehow that counted against the government. In reaffirming its decision in a preliminary injunction, the court erupted in sanctimonious disgust: "The Court will not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has."
McCreary County was a 5-4 decision in which the Supreme Court concluded that two Kentucky counties' displays of the Ten Commandments in their respective courthouses were unconstitutional because each of three iterations of the displays evinced to a "reasonable observer" the same impermissible, nonsecular purpose—the promotion of Christianity. "Reasonable observers," the Court intoned, "have reasonable memories."
And unreasonable observers have unreasonable ones. Put to one side that the Supreme Court has never yet applied the establishment clause to foreign claims—a fact not even acknowledged by this judge. What makes the Hawaii court ruling so absurd—and such a clear example of fake law—is the district judge's use of campaign statements by people without any lawmaking power when they were made to identify the order's purpose. The Ten Commandments case was at least an attempt to discern government purpose because there was actually a government with a law-making history whose purpose could ostensibly be investigated. What "legislative history" did this judge consult? Campaign rhetoric, and the media spouting of a "surrogate" who has no role at all in the current administration.
A large part of the blame for this abomination falls on the Supreme Court. It was only a matter of time before the hollowness of its favored establishment clause test—which focuses on impure motivations, perceived slights, and the hurt feelings of political exclusion—would be exposed in the patently unreasonable use of irrelevant and illimitable "context." The reasonable observer, it seems, is not the judge who faithfully applies the law but the politically motivated judge who swells the scope of the establishment clause and wears his contempt for the president like a medal.
Trump, too, is responsible. His incompetence, his pugnacity, his reliably ill-advised policies, and his boorishness combine to cause his political adversaries to see all shades of red in whatever he does. Enraged legal academics have manufactured grotesque theories about the emoluments clause, the Electoral College, and the establishment clause just to bring him down.
As more courts succumb to similar Trump-hatred in the exercise of their constitutional duties, the damage to the law's legitimacy and to the institution of the judiciary will only intensify. As with fake news, it is one of the pathologies of fake law that we are likely to forget what real law looks like. Soon enough, we won't even know the difference.