Free Speech

Michigan AG's #DetroitLeaks Takedown Demand, and Seditious Libel

The AG is threatening criminal prosecution because the videos allegedly contain "false and misleading information" about Michigan elections' vulnerability to fraud.

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The Michigan Attorney General's office sent this letter, apparently to the Big League Politics site:

(Jim Hoft (Gateway Pundit) posted about this yesterday, and I've just confirmed the letter's authenticity with the AG's Office of Public Information.)

I can't speak about the factual accuracy of the allegations in the #DetroitLeaks video, or in the AG's response. But assume for the purposes of our discussion that the #DetroitLeaks allegations are false. Can those who post the video indeed be criminally prosecuted for the falsehoods (even if the government could prove knowing or reckless falsehood on the posters' part)?

I don't think so. I think there is some room under the First Amendment, and under the leading precedent (U.S. v. Alvarez (2012)), for laws that ban knowing falsehoods about how, where, and when to vote. There the government's concern would be that people will be duped out of voting because they'll show up at the wrong time or in the wrong place. Such restrictions would be narrow and closely focused at protecting the mechanics of the voting process.

But I take it that this isn't the Michigan AG's concern here—rather, the concern must be that people will be fooled into overestimating the risk of election fraud (assuming those statements are indeed false), and will thus either be less interested in voting or will view the election results as illegitimate. And that strikes me as a special case of the much broader concern about certain kinds of political lies: Lies about the government or its processes, the theory goes, will wrongly undermine citizens' faith in the government.

This is a factually perfectly plausible concern. Indeed, it is an old concern, which dates back at least to the Founding era, and in particular to the debates about the Sedition Act of 1798 and similar speech restrictions—laws that generally banned (to quote the relevant part of the Sedition Act),

false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress …, or the President …, with intent to defame [them]  … or to bring them … into contempt or disrepute; or to excite against them … the hatred of the good people of the United States.

The Act's backers stressed that the law (unlike the English common law of seditious libel) was limited to "false" and "malicious" statements; and they noted the importance of restricting those statements. Here is Justice Chase's instruction to the jury in U.S. v. Cooper, about the Sedition Act specifically:

If a man attempts to destroy the confidence of the people in their officers, their supreme magistrate, and their legislature, he effectually saps the foundation of the government.

And here is one from Justice Iredell in Case of Fries, dealing with a treason prosecution arising out of the Fries Rebellion in Pennsylvania in 1799:

The liberty of the press is, indeed, valuable—long may it preserve its lustre! … [But] can it be tolerated in any civilized society that any should be permitted with impunity to tell falsehood to the people, with an express intention to deceive them, and lead them into discontent, if not into insurrection, which is so apt to follow? … The necessity [of punishing libels against the government is even greater in a republic than in a monarchy], because in a republic more is dependent on the good opinion of the people for its support …. Take away from a republic the confidence of the people, and the whole fabric crumbles into dust.

The Michigan AG's letter seems to me to be implicitly premised on the same sort of concern.

Again, these concerns are serious concerns, held by serious leaders during the Framing Era. But I think that our legal system has rightly retreated from punishing such seditious libels, partly because criminalizing even outright lies ("false" and "malicious" statements) about the government

  • unduly risks suppressing or at least deterring even legitimate opinion,
  • unduly risks suppressing allegations that would ultimately prove accurate, and
  • unduly risks selective enforcement by officials of that government.

For an example of these problems, see U.S. v. Cooper itself; and the Supreme Court recognized this in 1964, concluding that:

Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history. Fines levied in its prosecution were repaid by Act of Congress on the ground that it was unconstitutional…. The invalidity of the Act has also been assumed by Justices of this Court. These views reflect a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment….

[Though false, malicious allegations against specific public officials may be punished,] "no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence."

Nor does it matter what label government officials attach to this, whether it's "sedition" or "seditious libel" or "misleading and false election information." I'm not sure that Michigan law actually does purport to ban "misleading and false election information" generally. (The AG's letter doesn't cite any such statute, and my quick searches haven't found one.) But if there is such a Michigan prohibition, then I don't think it's constitutional, at least when it comes to allegedly false and public-confidence-damaging claims about the reliability of the election system.

NEXT: The Filter Bubble (with SF Author/Futurist David Brin, Prof. Jane Bambauer, Prof. Mark Lemley, Prof. Ted Parson, and Me)

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  1. Criminal prosecution of criticism of a government, by that government.

    What’s to worry about?

    1. Yeah, sedition is dumb in the modern era.

      Please tell AG Barr and a bunch of the commenters here.

      1. Sedition as a crime was a dumb idea in the founding era.

      2. When did Barr threaten to prosecute anyone for sedition, or criticism of the Government? Please provide citations.

        1. Barr told prosecutors to consider sedition charges for protesters.

          For a citation, Google it.

          1. Nice try.

            Attorney General William Barr told federal prosecutors in a call last week that they should consider charging rioters and others who committed violent crimes at protests in recent months with sedition, according to two people familiar with the call.

            Commiting violent crimes is well outside the First Amendment. Not to mention he only told them to consider it. He did not write a letter affirmatively threatening someone with such a charge.

            1. Perfectly consistent with the position of the modern left. Our violence is speech, your speech in violence.

            2. Nobody said he threatened someone specifically with that charge. Try reading again:

              “Barr told prosecutors to consider sedition charges for protesters.”

              Now here’s your quote, CONFIRMING EXACTLY THAT:

              “Attorney General William Barr told federal prosecutors in a call last week that they should consider charging rioters and others who committed violent crimes at protests in recent months with sedition, according to two people familiar with the call.”

              1. Do you understand the difference between threatening a citizen with prosecution if he does not do as you want, and telling a prosecutor to consider one crime among the many in the criminal code for a crime already committed?

                And yes, I read what I quoted, and it precisely confirms what I posted here. Try re-reading it.

                1. Yeah, sedition is dumb in the modern era.

                  Please tell AG Barr and a bunch of the commenters here.

                  You took issue with this. Do you still?

                  1. Maybe you should clarify your comment, since you responded to a comment about punishing people with speech with a comment about punishing people for violent crime.

                    Did you mean to say that it’s dumb, in the modern era, to punish people for attempting to violently overthrow the government?

                    1. Yeah, Prof. Volokh set me straight on the charges.

                      But yeah, sedition is dumb in the modern era.

                      And it looks to me like it is telling of the overcharge Barr was pushing for that no one was actually charged with that crime.

              2. The thread was about criticizing the government, i.e. speech.

          2. The law of seditious conspiracy is quite different from the Sedition Act of 1798 (or the law of seditious libel more broadly); see this new post for more.

    2. What does the Bar say about schmucks who write such letters?

      Isn’t there something about threatening a lawsuit that you neither intend to file nor expect to have any chance of winning if you did?

  2. At what point can the Michigan AG’s office be sued for intentionally violating the clearly established First Amendment rights of the people they sent this letter to?

    1. They could file a declaratory judgment action against the Michigan AG. This letter is more than enough for that.

      1. “they”

        Who are “they” that would “file a declaratory judgment action against the Michigan AG”?

        1. The recipients of that letter, and the persons who operate that website.

        2. Oops. “They” obviously means the recipients of the cease and desist letter. Nevermind. Reading too fast.

          1. No problem. Happens to me all the time. The brain gets ahead of the eyes and ears. Which can get pretty messy. 😉

      2. Bored — what about damages?

        Or the Delta Charlie’s bar card?

        1. What are the damages? Other than attorney’s fees.

          As for the bar card, you have to file an ethics complaint. Which is never dealt with until all litigation comes to an end.

    2. No court has found that an Attorney General violates the rights of a person by sending them a Cease & Desist order, on a Tuesday, in a pandemic, in a year that’s divisible by 4.

      Qualified Immunity.

      1. Actually, the first part of your post, up to the word “order” is accurate. In fact, I don’t think it is a First Amendment infringement at all.

        But as I said, it could easily give rise to a DJ action. For which, if I were counsel, I would ask for a declaratory judgment, an injunction and attorney’s fees.

    3. She should be personally liable, this is a clearly established constitutional right she and the attorney general are violating, there shouldn’t be qualified immunity, or prosecutorial immunity.

      In fact maybe Barr’s DOJ should have her and the AG arrested for conspiracy to violate federal civil rights:
      Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States.
      For the purpose of Section 242, acts under “color of law” include acts not only done by federal, state, or local officials within their lawful authority, but also acts done beyond the bounds of that official’s lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties. Persons acting under color of law within the meaning of this statute include police officers, prisons guards and other law enforcement officials, as well as judges, care providers in public health facilities, and others who are acting as public officials. It is not necessary that the crime be motivated by animus toward the race, color, religion, sex, handicap, familial status or national origin of the victim.

      1. These people are too used to getting away with their criminality.

      2. One of your problems, is that a C&D order doesn’t ‘deprive’ anyone of anything, because it can be ignored, or challenged.

        The rest of your problems have nothing to do with this story.

        1. So they aren’t deprived until the AG’s fist hits their face? What if they flinch, chilled of further speech?

    4. This type of thing won’t end until government officials are criminally held liable for these types of abuses.

  3. If laws such as the Sedition Act could actually be confined to banning lies, well, heck, with wisdom like that, to differentiate lies and truths on such an absolute scale, we wouldn’t need government. But because neither we nor our “betters” can so differentiate, laws like that are an abomination. Someone famous said something like that, about angels and governance.

    I sometimes think there should be an exam for everyone who wants to be a candidate — they’d have to spend an hour in front of voters explaining all this stuff, and if the voters thought they were insincere in explaining it, they don’t get to be candidates. But that’s just another fantasy of the same sort.

  4. Note that the AG here is a lesbian and a jew. Jews never appear to have a problem defeating rights of the goy … just sayin’.

    1. Note here that you are a disgusting individual who should be banned from this website. Just sayin.’

      1. Unless he made fun of conservatives or said mean things about conservatives, the record indicates neither the comment nor the commenter will be removed from this site.

        You knew that. You just want to make it seem that bigotry isn’t welcome at the Volokh Conspiracy.

        1. Since I am not the one who runs the Volokh Conspiracy, what I say or don’t say has nothing to do with how the VC “seems.”

          You can ask Professor Volokh why PP has not been banned.

          1. Bored Lawyer: If you’re curious why Pavel Petrovich hasn’t been banned, it’s because I don’t ban people for expressing bigoted views, no matter how factually unfounded they might be. I do delete comments that contain vulgar insults, and I ban commenters for persisting in posting vulgar insults after they’ve been told not to.

            I’m trying to maintain a conversation here, and such vulgar insults tend to poison the conversation, without being necessary to express whatever views people might want to convey. (Naturally, as readers might gather from my posts, I’m referring here to using the words as insults, and not just mentioning the words in the course of discussing them.)

            1. The line between vulgar insult and bigoted view must be as interesting as it is apparently important.

            2. He gets zero engagement, and no small amount of mockery. He’s flown too close to the troll-sun and is really no trouble at all.

              1. Icarus meets the Internet. Certainly original.

                1. You gotta admit, there are more effective trolls on this site by a far sight.

    2. Doesn’t Judaism follow Leviticus?

      Just wondering….

      1. You are looking for logic from a bigot?

      2. Liberal “Jews” don’t follow any part of Judaism.

  5. Undermining confidence in elections is criminal now? It’s like the last four years didn’t exist.

    1. Thank you.

      Concern over Trump not accepting defeat in 2016, mocked. The day after the election the sides flipped on this, which persisted until the day after the 2020 election, when the sides flipped again.

      How does nobody see this? Everyone stop screetching about the other side and look in the mirror.

  6. “Lies about the government or its processes, the theory goes, will wrongly undermine citizens’ faith in the government.”

    The predicate assumption would have to be that citizens have faith in Michigan government. This has yet to be proved …

    1. Also the assumption that the statements in the videos are actually lies.

  7. This is third world thug government shit.

    Threatening jail over a blog or Facebook post is just how dictators like Hun Sen in Cambodia, and Xi in China control their people.

    1. This is third world thug government shit.

      Kind of like refusing to acknowledge the results of a free and fair election, filing several lawsuits to overturn legally-tabulated votes, and having your party cover the airwaves with statements like Pompeo’s, promising a smooth transition to a second Trump term?

      That kind of third-world thug government shit?

      1. refusing to acknowledge the results of a free and fair election

        This presumes the answer to the dispute at hand. But you already knew that.

        1. Well, find some evidence other than *checks* a perjurious statement from a disgruntled postal worker, and maybe there will be some reason to believe that the election was free and fair for every Republican who won, but not Biden.

          1. Keep that conclusory rhetoric going, friend. That seems to be all you can muster, so may as well roll with it.

            1. If you can articulate a single argument that I can address with non-conclusory statements, feel free to offer one.

          2. The perjerous statement? On whose authority? The WP? Not his, and any documents signed after an illegal 4 hour detainment and interrogation without a lawyer with associated witness tampering are invalidated from the get go. Audio recordings are fun.

            1. I’m quite comfortable with trusting that the Post didn’t make something up out of whole cloth and not trusting that Project Veritas didn’t do exactly that.

              Also consider the story being told. Also consider the money flow at evidence.

              At this point I begin to feel like you believe more out of obligation than anything actually rational.

      2. Yes, I distinctly remember third-world thugs doing things like filing lawsuits and speaking to the public to try to persuade them. I mean they never do things like lock up their opponents, or threatening their lives. Nah.

        Try thinking about what you are writing before you press SUBMIT. Trump is beclowning himself, and Pompeo has now joined the act. But between that and, say, Robert Mugabe or Jean Claude Duvalier, there is a long, long stretch.

        1. When Hillary warned that Trump would never accept that he has legitimately lost, and would instead claim that the system was rigged against him, you all laughed. And then he did it.

          When Biden warned that Trump would try to avoid a peaceful transfer of power, you laughed. And then Trump promised that he would resist being thrown out of office.

          And when he repeated that assertion, you all said he was just joking, that he couldn’t seriously be expected to agree, in advance, to be a gracious loser. And now here we are.

          Do we need to wait for Trump to escalate things still further, before you’ll sense a pattern in Trump’s maneuvers?

          I personally believe that Biden, the media, our judiciary, and the American people are still committed to the rule of law and the idea that our elections matter. I have some confidence that Trump and his goons will fail in what they’re currently attempting to do. But the fact that Trump is likely to fail does not discount the severity of what he is, in fact, trying to do – which is ignore the election that will cast him out of office. Don’t try to spin it as something other than it is.

          1. You mean Trump didn’t just say, “oh, shucks — you said I was going to lose, and then you said I lost, so I guess you got me”? And instead filed a lawsuit contesting the preordained “results”?

            Good thing that’s never been done before in the history of the country and thus you’re actually making a good-faith genuine point.

            1. I’d expect Trump to abide by the same standard that most presidents historically have abided by – including Hillary, in 2016 – which is to look at the election results, map out if there’s any chance to victory, and make a reasonable call as to when it’s time to bow out, so that the country can get started on the important process of the transition.

              What’s Trump’s strategy, here? What is the path to victory? He has offered no evidence of fraud or improprieties on the scale that would be required to flip enough electoral votes back into his column. He’s now floating this theory that mail-in votes were somehow unconstitutional – a claim that, if accepted by the courts, would throw this entire election into disarray.

              None of this is ordinary.

          2. You would have a better case if the Democrats didn’t spend the last four years looking for reasons to throw him out of office, since we’re so concerned about the integrity of government. You know they’re not supposed to turn the government’s power of investigation against political opponents, right?

            No trashing the honor or integrity of government there.

            To be fair, Trump pulled this on himself with “Lock her up!”, doing the exact same thing. The two sides see each other as government integrity-wrecking trash. Guess what?

            You’re both right.

            1. Yeah, if you assume bad faith in the other side, and then blame them for forcing you to make that assumption, you sure can accuse them of anything, and then blame them for making you believe your accusation!

              This is just tribal logic in a big circle.

            2. The Democrats didn’t spend the past four years trying to throw Trump out of office. Don’t you remember? No, I trust you don’t.

              Republicans controlled both houses of Congress from 2016-2018. Democrats were powerless to really do anything to throw Trump out of office, and throwing him out of office was not part of their agenda. And then, when Pelosi finally got a majority in the House, there was a sustained debate about whether they should try to govern with Trump or try to impeach immediately. They didn’t try to impeach him until a whistleblower revealed that Trump had held up military aid to Ukraine in order to dig up dirt on Biden. An act that was even widely acknowledged by Republicans! Just – “no harm, no foul,” and they acquitted him in the Senate.

              It’s so tiresome to have to remind you asshats of what actually happened. It’s almost like you don’t care about what the reality was – you just care about what it felt like. But Democrats spent a lot of time trying to negotiate with Trump on things like infrastructure spending (remember that?), and even offered him money for his wall as part of an immigration reform package (which he rejected, because it didn’t restrict legal immigration enough). Impeachment gained traction only when he, uh, put the national security of the country at risk in order to further his political prospects.

              1. The media is an arm of the Democrats.

                1. “The media” is not monolithic, and various outlets have taken different tacks, at different times, over the past four years. There was plenty of accommodationist coverage coming out of national newspapers and news networks during the campaign, for instance. A lot of hand-wringing during the primaries, in particular.

                  If you have specific points to make about the media, we could discuss them, but in the meantime your broad-brush statement is too overly simplistic to be of much use here. Are you saying that, because the “media is an arm of the Democrats,” that their intense coverage of the Trump administration constitutes trying to throw him out of office? What exactly do you think our news media should be doing? Writing fluff pieces celebrating Trump’s achievements?

      3. Al Gore contested the election for 36 days, and didn’t make a final concession until after the Supreme Court rules to foreclose his last legal challenge.

        And he had every right to exhaust all of his legal and political remedies. So does Trump.

        I’ll also say even if Trump and his supporters believe he will ultimately fall short even if only legal ballots are counted, as I do, if he also believes that there was widespread vote fraud, incompetence, and illegal ballots counted, as I do, then he is doing the country a service by trying to fully expose the irregularities before he conceded. Because if he conceded and dropped his lawsuits the irregularities would never be addressed.

        1. Al Gore had legitimate reasons – it was a very close election that came down to one state.

          Trump has no reasons, just spite and nonsense. Indulging him is foolish.
          Believing him shows the ability of tribalism to subsume rationality.

          1. You don’t have to believe him. Laugh and mock, but he gets his day in court. A case was tossed yesterday because his two witnesses under oath could produce no proof.

            Still not an argument to pre-foreclose suits.

            1. Note how that’s not my argument.

              My issue is with the GOP knowing better indulging him, and the party faithful *not* knowing better and believing him based on a set of nonsense that has to keep changing as it’s debunked one by one.

              70% of the GOP now thinks the election was stolen, This isn’t costless.

  8. What is going on now is more destructive than lying. Republicans are apparently trying to construct a public record, using alleged court filings, to create made-up historical context suggesting that official actions taken now validate Republican falsehoods about the election. Republicans do not expect to win in court. They expect to win in public, by pointing forever-more to court cases on record as evidence of wrongdoing by their opponents. Hence, a stolen election.

    If courts let Republicans play them as propaganda instruments, the courts will do so at the cost of legitimacy. I don’t know enough about law to say by what specific legal processes that should be countered. Perhaps someone better informed could comment.

    What I envision is something like an appeal from the Biden campaign, directly to the Supreme Court. Biden should allege that Trump’s legal complaints have been pretextual—or if not pretextual, about facts which fall far short of any potential to overturn Biden’s apparent victory.

    Biden should argue that pretext indefinitely extended would violate the law on presidential transitions. Biden should ask that the Court order Trump to file any and all remaining lawsuits immediately, within a few days.

    The Court should then order Trump to pick which of his suits he thinks gives him the best chance to reverse the election, and give that suit an expedited hearing and immediate decision. If Trump wins that one, go on to the next, until the apparent election result actually is reversed.

    At some point, fairly early in the process, it will probably become evident that Trump has nothing. At that point, the rest of the suits can be dismissed as too little and too late.

    1. Yes, how dare that website have a mail address to which the Michigan AG’s office can send a threatening, fascistic letter. They must be Republicans, and it’s all their fault.

    2. “What I envision is something like an appeal from the Biden campaign, directly to the Supreme Court. Biden should allege that Trump’s legal complaints have been pretextual—or if not pretextual, about facts which fall far short of any potential to overturn Biden’s apparent victory.”

      What an ignoramus.

      The Supreme Court rules on the law, not the facts. One of the core functions of the trial court is to make a finding on the facts to see if they are as alleged.

      You seem pretty desperate to cut the fact finding short so no determination will ever be made whether they are true.

      If you were interested in the truth you would want Trump’s lawyers to have to prove in court with testimony and witnesses that their allegations are true, not squelch the inquiry from on high.

      1. The Supreme Court rules on the law, not the facts.

        Talk about being an ignoramus!

        Article III, Section 2 of the U.S. Constitution states:

        In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

        This is law school 101 type stuff. Maybe you should shut your ignorant face and watch Josh’s videos. Clearly he’s eager for an auidence.

        1. You are an idiot too. While of course the Supreme Court can find fact, they NEVER do so.

          That’s evidenced by their proceedings which NEVER call or cross examine witnesses or present exhibits. That doesn’t mean of course that they can’t doubt facts, or infer facts from the trial court record, but it the trial court which has the responsibility to examine the witnesses, compile the evidence and find the facts.

          It’s the appellate and supreme court’s that ensure the trial courts applied the law properly to the facts, including whether the facts were sufficient, and in many cases they will remand to the lower court for further fact finding. They NEVER undertake the responsibility of finding their own facts.

          1. I have no interest in chasing your goalposts. I’ll simply acknowledge that you’ve conceded that you misspoke.

            1. Not a bit. Just because the Supreme Court can find facts if they chose to, doesn’t change the fact that in our modern courts they never do. That’s law school 101 type stuff.

              Or maybe you can prove me wrong and tell me the last time a witness testified and was cross examined in the supreme court, or direct evidence presented.

              Quit making a fool of yourself.

              1. You can repeat yourself, if you like, but I’m still not chasing these goalposts.

          2. Kazinski, how does that work in cases of original Supreme Court jurisdiction?

            Perhaps also relevant? Whenever some Supreme Court Justice announces an originalist analysis, it means they are not only deciding facts about history, but also indulging themselves as litigants. In that role, they choose (or invent) the facts they want, put them into the record, and then get back into their robes, and climb onto the bench to decide the case.

            Also, where did I say I wanted fact finding cut short? I said I wanted it expedited and tried—unless and until it became evident that mismatches between the number of votes complained about, compared to the number needed to make a difference, rendered the whole project pointless.

            I add here that this is not a normal judicial situation, with the normal open-ended time lines. Unavoidable deadlines working backward from January 20, include: electoral college business, recount performance and collation, vote certification, and, earliest of all, transition team business Those cut short the interval suitable for tolerating pretend litigation.

            Do you suppose the nation ought to tolerate a typical Trump run-out-the-clock legal strategy in a case about election results?

            1. “Whenever some Supreme Court Justice announces an originalist analysis, it means they are not only deciding facts about history, but also indulging themselves as litigants.”

              That’s just incoherent. Whether an originalist or a living constitutionalist, Supreme Court justices are interpreting the law, not determining the facts of a case. And how that could possibly transform originalists into litigants, while presumably the outcome oriented progressives remain the neutral arbiters?

              1. Kazinsky, whether you (or the courts) have noticed it or not, every originalist argument depends for its evidence on facts from the historical record. I get that ideologically partisan “originalist” analysis customarily substitutes made-up historical facts, and calls that legal analysis, but that is just an example of Lincoln’s 5-legged dog. Real originalism must treat the facts of history as evidence, or it is all make believe.

            2. “ Kazinski, how does that work in cases of original Supreme Court jurisdiction?”

              Glad you asked, that’s actually a good question. They assign a special master or trial court to have hearings and provide a factual record. Then the review the facts the lower court developed, and then have briefs and arguments just like a regular SC to decide the law. They don’t do their own fact finding.

              1. Wait a minute. The lower court? I asked about cases of original jurisdiction. Do I misunderstand. How do lower courts get in on a case where the Supreme Court has original jurisdiction?

            3. “How does that work in cases of original Supreme Court jurisdiction?”

              Glad you asked, that’s actually a good question. They assign a special master or trial court to have hearings and provide a factual record. Then the review the facts the lower court developed, and then have briefs and arguments just like a regular SC to decide the law. They don’t do their own fact finding.

    3. Couldn’t come up with a way where it’s a Russian conspiracy? Try harder!

    4. Stephen,
      Where do you get “more destructive than lying?” Candidates are free to try to litigate. Neither anything that you nor I mifght say about the sensibility of doing so makes any difference. Freedom in America is based on that opportunity to litigate.
      “The Court should then order Trump to pick which of his suits ”
      Where does that concept come from. You’ve pulled it out of your butt. The court system does not work that way. The Organge Clown will have his tantrum and his pointless and impotent filings and in several weeks it will all be over.
      Until then chill.

    5. They expect to win in public, by pointing forever-more to court cases on record as evidence of wrongdoing by their opponents. Hence, a stolen election.

      Ikr? Endless legal action to cast doubt on the validity and integrity of the opponent.

      I wonder where learned that?

      Both sides are trash abusers of the system.

    6. “Republicans are apparently trying to construct a public record, using alleged court filings, to create made-up historical context suggesting that official actions taken now validate Republican falsehoods about the election.”

      So. More or less what the Democrats did in 2016.

  9. “Lies about the government or its processes, the theory goes, will wrongly undermine citizens’ faith in the government.”
    Assuming that Eugene is right and that there is in fact no Michigan law that purports to ban “misleading and false election information”, wouldn’t the AG’s letter itself fall into this category of lies about the government which undermine citizens’ faith?

  10. The walls of decades of open, brazen Democrat election fraud is finally coming down.

    That tape was devastating.

    1. Its only “devastating” if one is predisposed to believe fake bullshit.

      The AG letter is probably a 1A violation, but the video is, as they say, fake news.

      Meanwhile, “Postal worker admits making up allegations of ballot tampering, officials say”

      https://www.washingtonpost.com/investigations/postal-worker-fabricated-ballot-pennsylvania/2020/11/10/99269a7c-2364-11eb-8599-406466ad1b8e_story.html

      1. I can’t believe you fell for those lies.

        In his own words he does not recant.

        https://www.youtube.com/watch?v=ibU5KVFCg4Y&feature=emb_title

        Further he released tapes of the Biden Voters at the USPS coercing him. 3rd World progressive shit right there.

        1. 1) a 47 second clip from Project Veritas is your new hill to die on?

          2) In his own words he also recanted…so maybe no longer a very credible bit of evidence, eh?

          1. You’ve seen his words where he recanted? Or just reports by Democrats that he did?

            That youtube video is him making a statement. A crystal clear statement that he never recanted.

          2. Let me get this straight.

            This guy in video declares he never recanted.

            Democrats report he recanted.

            And you believe which?

            1. Shhh… don’t go interfering with their preplanned dialogue. There’s a narrative to be maintained!

            2. So you think its the Post, Times, ABC, etc. that are all lying.

              And not Project Veritas, which is known to lie all the time.

              Good luck with that.

              1. Because the Post is completely unbiased, right?

                1. Lets get down to it: you think the Post just made it up?

              2. Who are you going to believe, all these reputable sources, or your own lying eyes?

                Are you seriously going to make that argument, Sarcastro?

    2. Still at it, eh Sam?

      Because you made quite a fool of yourself on Monday. Not that I expected you to learn.

      1. You’re a liar.

        1. No, you’re just really committed to believing false things if they make you happy.

          1. Meanwhile you just know in your heart of hearts that no one would ever film themselves committing a felony!

            Its just common sense. Just ignore the thousands of videos of people filming themselves committing felonies!

            1. Dude, just this week you’ve fallen for 3 proven hoaxes. You don’t really have a lot of room to argue.

              1. For guys like Sam Gompers, the collapse of one fool’s errand simply strengthens the case for the one that has not yet fallen.

                ‘See, this one is still standing, so it must be good.’

                Mocking and refuting these yokels is fine fun — and their bigotry and disaffectedness makes it an important civic endeavor.

  11. Whoever redacted those addresses did a poor job.

  12. No comment on the delusional letters and juvenile complaints being advanced across the land by the campaign of Pres.-reject Trump, but an extended riff on a letter from one state’s lawyers to a bunch of lying clingers.

    Polemical, White, male, movement conservative blogs are among my favorite culture war casualties.

    1. The saddest day was when the soup kitchen near your cardboard box shut down. Otherwise it’s business as usual in the world you wish you lived in.

      1. Good news for the delusional audience . . . Hopkins apparently has posted another video, this one recanting the recantation.

        Project Veritas, meanwhile, has responded to the initial recantation by offering $25,000 to anyone who wishes to take Hopkins’ place as poster child for the Trump Won The Election Bigly crowd.

        1. Hopkins apparently has posted another video, this one recanting the recantation.

          Fascinating how you managed to burn all those angsty keystrokes without linking to the alleged video. You’ve put the word “apparently” into traction, son.

          1. I tend to avoid performing basic research for clingers — how are these deplorable, disaffected losers to learn anything if their betters always do all of the work for them?

    2. The VC’s general silence on virtually all matter election-related was a real dereliction of duty. I would have appreciated their calm and conservative takes on the legal dimensions of what we’ve seen happen over the past couple of months. Seems too many of them are angling for a judicial appointment.

      1. What you perceive as civically bankrupt cowardice is, to the contrary, #ConservativeCourage.

        They’re saving their outrage, understandably, for the next time a college professor says something that is not welcoming to a conservative on a liberal-libertarian mainstream campus.

      2. SimonP, I was disappointed by that too. But not surprised anymore. The VC has good and interesting qualities, but it has always been more advocacy than journalism. When something happens which embarrasses the advocacy . . .

        1. Some of the better Conspirators have largely left this blog behind. It’s like the bright flight we have observed in the desolate southern and rural backwaters for generations, which strips the better young people from a community and leaves behind a depleted human residue.

      3. What in the world are you talking about? What is there for VC bloggers to say that has not already been said?

    3. Is this a variation of your usual complaint, where they tackle government schools censoring and mostly ignore private ones?

      Well, this blog watches government actions that threaten rights.

      Maybe some will comment on what you say, like they sometimes now tackle private institutions censoring in violation of their own statements to academic ajd speech freedom.

  13. If Ms. Nessel thinks she can prosecute the case, bring charges. But what law is she actually relying on? The letter doesn’t say, or am I missing something?

    1. Again, Bar Association????

  14. To the deplorable bigots who were parading that sketchy Richard Hopkins affidavit as “evidence” of election fraud . . . Mr. Hopkins has reportedly told the FBI he fabricated the claims while working with Project Veritas.

    The Conspirators can now prepare their ‘he was only expressing an opinion in a manner protected by the First Amendment on a matter of still-debated public concern’ defense of Mr. Hopkins in anticipation of the criminal charges that, I hope, precipitate a lengthy incarceration for Mr. Hopkins. If he rats on the Project Veritas personnel, I would support leniency in the form of a five-term term of imprisonment.

    Carry on, clingers.

    1. “five-term term of imprisonment.”

      fake laywer can’t even get that right.

    2. The USPS IG arm are FBI now? Interesting how a story metastasizes isn’t it? Also, a 4 hour illegal detainment and audio recordings of outright lies and witness tampering on the part of the IG is not a good look.

      1. You’re right, I saw ‘federal agents obtained an affidavit’ in a message from a reliable source and wrongly inferred the FBI was involved. I was mistaken, and regret the mistake.

        You’re a despicable, nonsense-believing and -spewing, right-wing bigot, though, and that the Volokh Conspiracy attracts the likes of you speaks volumes about the Volokh Conspiracy, its contributors, and movement conservatism.

        Carry on, clingers. But only so far as your betters allow.

        1. Ummmmmm – aren’t you a contributor too?

          Are you one of the “betters?” Just checking.

  15. Oh, dear we must not have people investigating and videotaping things. The horror!

    1. This is absolutely not the remedy, but they do appear to be lying their ass off, not investigating.

      1. I am more worried about the Attorney General of a state threatening someone for criminal prosecution, than an obscure website I never heard of lying about politics. Maybe that’s just my idiosyncrasy.

        1. Someone should alert the Attorney General that Bored Lawyer is worried.

        2. Bored – feel free to be concerned about both!

      2. If the process was nearly as airtight as the rhetoric surrounding it claims, people wouldn’t care at all.

        The problem is voter fraud happens, is easy to commit, and is very hard to detect, even if the widespread conspiratorial voter fraud that can steal 40k votes is almost certainly also fairly uncommon.

        But, the system is so shoddy, that even if our worst fears were realized, and it isn’t Joe Biden and big city Democrats falsifying an election, it actually is China and Russia committing fraud on a large scale, we probably would be unable to stop that attack, and likely wouldn’t even be able to detect it with the procedures we currently have in place.

        So what is the official line? Head in the sand, because if the public knew the truth, there would be panic. Why else are the DOJ guidelines for even launching a criminal probe into voter fraud so restrictive? Why doesn’t the FBI and DOJ regularly conduct stress tests on our electoral systems? Because we know they would fail, and that doesn’t mean Biden cheated at all, instead, it means the process is currently very broken.

        1. If the process was nearly as airtight as the rhetoric surrounding it claims, people wouldn’t care at all.

          That is very much not true. If Trump says it, people will believe it. Even after all his history of nonsense.

          The system actually worked vastly better than I expected. You, it seems, are actually proof that people will care regardless of the actual facts.

          1. The facts are this: There were many statistical irregularities, particularly in WI, MI, PA, and GA, there were a few whistleblowers, some more credible than others. Will any of this add up to a stolen election? Probably not, but the lack of interest by mainstream entities is of great concern.

            Would a journalist not deserve great praise for finding even one instance of fraud? I think so. Same with an FBI agent. Would it not be praiseworthy for an FBI field office to conduct stress tests on voting systems by attempting fraud and thus discovering weaknesses that can be shored up?

            That none of that is already happening is the problem.

            1. Nope. No irregularities that cannot be explained by COVID being new. And no credible ‘whistleblowers’ at all. Literally not one.

              The media is doing their due diligence. You are not.

              1. Did Covid not happen in Ohio and Florida and Minnesota? Because the irregularities were not present in those states.

        2. Voter fraud is incredibly rare, and low impact when it happens.

          The real danger is our voting infrastructure, especially software (at all parts of the process). Both Scientific American and the New Yorker raised this issue in 2018. It’s been in front of congress off-and-on since at least 2007. The Brennan Center for Justice literally just provided congressional testimony on it last year. And SCYTL (the barcelona company who runs the software that handles the aggregation of US votes) just had a critical vulnerability identified last year in a Swiss voting system they were building (that they claim to have patched, but…) Quote:

          “Cryptography and privacy researchers Sarah Jamie Lewis, Oliver Pereira and Australia’s-own Vanessa Teague used the test to find a vulnerability they said could allow undetectable vote manipulation.

          The researchers said the problem was “entirely consistent with a naive implementation of a complex cryptographic protocol by well-intentioned people who lacked a full understanding of its security assumptions and other important details.””

          https://www.itnews.com.au/news/e-voting-vendor-scytl-criticises-researchers-that-found-vulnerability-520514

          If those security researchers characterization is right, there’s likely other similar errors across all of SCYTL’s software. It would mean the company responsible for a critical portion of the voting infrastructure had their software designed by ‘naive’, ‘well-intentioned’ people who ‘lack a full understanding of their security assumptions and other important details’. That’s pretty damning.

          Was their fraud this election? Or any given election in the last decade or more? Would you even be able to find it after the fact? I don’t know, and that’s sort of the problem.

          And of course, the electronic infrastructure of our elections is too arcane for most people to understand. The president doesn’t understand it, the voting public (as a group) doesn’t understand it, and most of congress probably doesn’t understand it. It doesn’t make for salacious news in the same vein as ‘the dead rise to vote’. Our public narrative about election integrity is pants-on-head stupid, and that prevents acknowledging and acting on any real problems of election integrity. (A point, i believe, the Brennan Institute has made repeatedly).

          1. Technical note: Voter fraud is fraud by voters. It does not cover fraud by others that affect the election process, like fraud by election officials, or hackers compromising key software to manipulate vote records.

          2. Squirrel. I cannot agree for several reasons. The main reason is that voter fraud in the common language includes all of the different avenues: double voting, falsifying ballots, and corrupting election officials.

            We are talking about election fraud as a whole. I don’t particularly care who’s messing with my election. I want them all to stop.

        3. I don’t think that’s true. There are still a lot of procedures in our systems that require local interference to avoid raising red flags. Unfortunately, Democrats have pretty much outlawed reporting that any flag is red.

          1. What are you even talking about?

  16. Is “G00gle it!” the post-modern’s petitio principii ‘begging the question,’ assuming the truth of the conclusion.

    Eschew Alphabet®, it is evil.

  17. The threat of prosecution alone is enough to constitute a First Amendment violation. This situation is exacerbated by the fact that Michigan law does not prohibit publishing false or misleading information information “about an election.” The Michigan AG is threatening prosecution for a non-existent crime. This from that bastion of conservative legal holdings, the 9th Circuit:
    “Four days after their website began operation, the owners of voteswap2000.com were threatened with criminal prosecution by then-California Secretary of State, Bill Jones, for alleged violations of various state election and penal code provisions. They immediately disabled the website’s vote-swapping mechanism, as did the owners of votexchange2000.com upon learning about that threatened prosecution. Shortly thereafter, Appellants filed this action, alleging that Jones’ threatened prosecution violated the First Amendment . . . we hold that the State’s legitimate interests did not support Jones’ threatened criminal prosecution of the owners of voteswap2000.com and votexchange2000.com.” Porter v. Bowen, 496 F.3d 1009, 1021 (9th Cir. 2007)

  18. Michigan AG, a jew, also sued the Catholic Church for belief in Catholic Church teachings…..jews are tricky bastards, watch out for them!

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