Monthly Archives: March 2023

Fascism in Florida – Come & Get Me

Leave a reply

Subtitle: Your papers, please.

Subtitle: “We must believe in the power and the strength of our words. Our words can change the world.” – Malala Yousafzai

*******************

Florida Senator Jason Brodeur has introduced legislation (2023 SB 1316) to, among other things, require bloggers who are compensated in any way for articles “about” certain state officials (including the governor) to register with the state and file regular reports.

Brodeur is a Republican (I know, I had you at “Florida Senator”). Brodeur’s background can be read here: https://www.flsenate.gov/senators/s10/?Tab=Personal  He is not stupid, in the sense that he has earned a Master’s in Public Health from Dartmouth College. That can’t be easy. But, of course, we’ve learned that intelligence and high educational achievement do not necessarily produce rational or coherent politicians. See, e.g., Josh Hawley and Ted Cruz.

Brodeur is a very busy guy – he has nine committee assignments. But he’s not too busy to propose a law that must have been copped from a first-year law school exam question: “draft a law that violates the First Amendment in at least ten ways.”

Brodeur’s brainchild legislation applies to bloggers who receive “anything of value” for posting blog pieces “about” Florida political leaders. “Blogger” means “any person as defined in s. 1.01(3) that submits a blog post to a blog which is subsequently published.”  If the “anything of value” is not currency, then the term means the fair market value of the item or service received. The triggering action includes that the blogger has received or “will receive” compensation and thus requires registration even if the blogger has only been promised something of value, whether or not it is actually received later.

I have questions. First, what is “anything” in “anything of value?” Are “likes” posted in response to the blog post “anything of value?”  How about readers’ reposts on other blogs? What if someone just sends me money as a “reward” for my bold reporting of the truth about Florida politicians? So many questions.

I could not find “s.1.01(3)” that the bill says contains the definition of “blogger.” Search and Advanced Search of Florida statutes turned up no documents. Search of the proposed bill for the definition – same, nada. But you can get there by additive analysis of the key operative language.

Missing, however, is any geographic limitation, leaving the question whether the bill’s authors intend it to apply to bloggers everywhere. I can’t wait. I’m going to send this post to the bill’s author and ask if I’m in violation. Come for me. Please. Pulleeesee come for me. I’ll be visiting Florida in a few weeks, so if you guys hurry, you can make me a violator while I ‘m there. While there, I plan to publish another blog post entitled, Governor DeathSantis – Herald for the Second Dark Age. I can reasonably guarantee that Hiz Honor, the Govnah isn’t going to like it.

Back to the merits. The Brodeur bill requires bloggers whose post is “about” an “elected state officer” or “mentions an elected state officer” to register with the state within five (5) days after the posting. An “elected state officer” includes the “Governor, the Lieutenant Governor, a Cabinet officer, or any member of the Legislature.” Once registered, the blogger must file monthly reports, unless the blogger does not have “a blog post” on a blog during a given month. Presumably, “a blog post” refers to only those that “mention” an “elected state officer” in some way, but this is unclear.

No time limit for the reports can be found in the bill so presumably the filing requirement continues in perpetuity unless the blogger stops blogging about “elected state officers.” That, of course, is the point, isn’t it? To use the power of the state to suppress criticism of elected politicians.

But wait, there is more. The bill states exactly what must be reported:

  • The individual or entity that compensated the blogger for the blog post.
  • The amount of compensation, rounded to the nearest $10 increment, received from the individual or entity, regardless of how the compensation is structured.
  • If the compensation is for a series of blog posts or for a defined period, the blogger must disclose the total amount to be received upon the first blog post being published. Thereafter, the monthly report must disclose the actual date(s) of additional compensation received for the series of posts.
  • The date of publication of each post.
  • The website and website address where the blog post can be found.

Late reports are subject to fines of $25 per day late subject to a maximum of $2,500 per report. Fines are paid into trust funds created by Florida law to fund the administration of lobbyist registrations, including salaries and other expenses and to pay expenses incurred by, for example, the state legislature in “providing services to lobbyists.” The state legislature provides “services to lobbyists?” What?

Thus, the underlying concept of this legislation is that blog posts “about,” say, a legislator are by legislative fiat, lobbying and are to be treated as such for purpose of fining late-filed reports. This is so even if the blog post is in no way related to attempts to influence legislation. A blog post “about” a state legislator might be an exposé of asserted corruption by the legislator, but if the blogger doesn’t file the report on time, her fines are to be paid into the legislative fund for managing lobbying registrations and the cost of services for lobbyists.

Brodeur was quoted in an interview claiming that people who write about the legislature are indistinguishable from lobbyists who talk to legislators. What? Do lobbyists in Florida openly criticize the legislators whose favor they’re seeking? Not likely. People who write critically about legislators (for present purposes, “bloggers”) are in no way similar to lobbyists who try to curry favor with legislators to get (or prevent) legislation.

Even Newt Gingrich has labeled this legislation “insane” and an “embarrassment.” Yes, it’s true. Even the Newtster thinks this legislation is nuts. He urged its withdrawal. https://bit.ly/3ZPeXYc Not likely. Your papers, please.

I will not waste more time on this nonsense. The notion that a state government can compel a compensated person (“anything of value”) who writes “about” the Governor or a legislator of the state to register and file reports is so blatantly a violation of the First Amendment to the U.S. Constitution that detailed analysis is unnecessary. Recall that Florida is among the leading states banning books about various aspects of American history that politicians don’t want anyone to read. If the Republicans in Florida have their way, the state will have justly earned renaming to Gilead.

Stay tuned for publication of Governor DeathSantis – Herald for the Second Dark Age. I will never register nor pay a dime in fines to Florida so ….

The Answer is Blowin’ in the Wind

Leave a reply

Those of you close to my generation will recognize that phrase as part of the refrain from Bob Dylan’s famous song that became a 1960s anthem against oppression and war. The song was made broadly famous by Peter, Paul & Mary, singing it here in 1966: https://bit.ly/3J6WK2w Joan Baez, among others, sang it in 1967: https://bit.ly/3SHSEB8

The lyrics to that song came immediately to mind when I read the report that the Department of Justice has, at long last, rejected Trump’s claims to be above the law. DOJ filed a brief arguing that Donald Trump’s claims of “absolute immunity” from civil suits must be limited at least regarding the January 6 abomination he sent to descrate the Capitol  https://bit.ly/3moh3jm

You know the story: Trump summoned the mob to DC and incited them to attack the Capitol to stop the final certification of Joe Biden’s electoral victory. True, he mentioned in passing that they should be peaceful, but that was classic Trump. Say one thing, then the opposite again and again. He also said, for example, “if you don’t fight like hell, you’re not going to have a country anymore.” His message was received loud and clear as evidenced by what the mob did. One of the many remarkable videos was produced by the New York Times, showing exactly what happened: Day of Ragehttps://nyti.ms/3mlhISw Many of those later arrested have testified under oath that they understood Trump had invited them to Washington and urged them to do just what they did.

Those revelations can come as no surprise to anyone with a fully functioning mind. Recall that Trump famously said, “I have Article II where I have the right to do whatever I want as president.” It’s on tape. He said it. He believed it. Still does. Often wrong, but never in doubt.

As recounted in the USAToday story, a group of House Democrats filed two civil suits and two Capitol police officers filed the third one. USAToday reports that Trump’s lawyers have argued to the Court of Appeals for the District of Columbia Circuit that, “The underlying question here is simple: is a president immune from civil liability when he or she gives a speech on a matter of public concern? … The answer is undoubtedly, yes.”

The Department of Justice rejected that position: “The district court also correctly rejected President Trump’s categorical assertion ‘that whenever and wherever a President speaks on a matter of public concern he is immune from civil suit.’”

Let’s briefly examine the “absolute immunity” claim. Let’s pretend you’re in law school. You adopt Trump’s position that he was addressing the election results, a “matter of public concern” and thus just “doing the job of the president.” He should, you contend, be immune from vexatious and meddlesome civil suits [law students love to talk like that] that could interfere with his ability to carry out his many constitutional responsibilities.

Having adopted the role of professor of law, I hook my thumbs in my vest [law profs love vested suits, or did back in the day], frown, pace a bit, spin, and face you: “That sounds pretty good, doesn’t it? Don’t we have to protect the nation’s chief executive and chief law enforcement officer from being hauled into court every time he says something that someone doesn’t like? Isn’t it true that someone always objects to virtually everything the president, any president, says?”

You smirk at having been recognized as oh-so-clever as to receive that rare law school commodity: praise from a professor. You are sure the other students are burning with envy at your achievement and recognition.

Then I, thumbs out of the vest now, lean forward closer to you, and you start to get a queasy feeling. I glare into your eyes and ask, “but suppose the president’s January 6 speech included this statement:

…and if you meet resistance from police at the Capitol, just knock them down, beat the hell out of them. Anybody gets in your way, kill them. I don’t care, but get the job done. Safe our country! Save meeee!

President still immune? Suppose Trump further said, “Mike Pence, the vice president I mistakenly chose to elevate from well-earned obscurity, failed to do his job. He needs to be set straight. Punished if he won’t do what needs to be done. If he refuses to comply, I say, Hang Mike Pence! Repeat after me, Hang Mike Pence! Hang Mike Pence!”

You spend the rest of class looking at your shoes, wondering why you didn’t just get a job.

You think back to Trump’s penchant for lying and making outrageous claims, then, when called out for it, saying, “oh, that? I was just joking.” On January 6, his followers knew he wasn’t joking. They understood exactly why he summoned them and what he wanted them to do.

The claim of “absolute immunity” is utterly implausible in a country with a democratic republican Constitution that sets up a three-part balance of power structure in which each of the three main branches acts as a check on the other two. It makes for complex problems and many troublesome questions, to be sure. Democracy is “messy,” according to a popular formulation. But one thing is clear: no man is above the law.  A president who incites violence in an effort to interfere with constitutionally mandated processes designed for the peaceful transfer of power must be held accountable by those directly harmed by his conduct.

Now, to return to our law school conceit for a bit longer, some will argue that the proper method for holding the president accountable is impeachment and nothing more. Impeachment certainly would work … if it worked. But Trump was impeached twice and not convicted because the Republican members of Congress refused to hear all the evidence, refused even to hear witnesses, and announced they would support him even before the “trial” occurred. Republicans thus made that constitutional process a sham.

It follows that the inherently political process of impeachment is not sufficient to hold a president accountable for inciting violence that harms not only the democratic system but individual citizens as well. Therefore, there must be another remedy.

To paraphrase Trump, if you don’t hold a president accountable for inciting insurrection, you’re not going to have a country anymore.

Now to conclude today’s lesson, let’s look at the broader implications of the position taken by the Justice Department. Despite what I’ve said above, I have little hope that the courts are going to agree with the Department of Justice. I am especially doubtful that the 6-Justice conservative majority on the Supreme Court, where the case is inevitably headed, is going to hold the president accountable as DOJ has proposed.

However, many observers, the writer included, have repeatedly expressed frustration that the Attorney General was going to let Trump skate despite his many crimes. While this set of civil cases is a far cry from a criminal indictment, the position taken by Justice signals that even its relatively conservative approach to “presidential law” has its limits. It may also signify that the Special Counsel appointed to independently investigate Trump’s many crimes has more juice behind his mandate than first appeared. Hope that it is so because our survival as a democratic republic depends on it. The answer, my friends, is blowin’ in the wind.

 [Pedagogical Note: in law school, the professor rarely jumped from one proposition you thought was right to the death blow to your sense of self-worth. Instead, they usually proceeded in small steps, slowly sucking the life out of what you thought was the intellectually plausible content of your thoughts, then delivering the coup de grace at the end. I have collapsed the dialogue in the interest of time and space. It was always worse.]