Rhetoric, Hate Speech, Free Speech, Section 3 of the 14th, & an Insurrection

Episode Notes

Transcript

Dr. Pete Simi:

While dehumanizing speech, words that dehumanize others might be legally protected, that doesn’t mean we shouldn’t understand how important dehumanizing language can be in terms of facilitating violence, which is not legally protected. So these relationships are complicated. They’re difficult to navigate. We can look at things that are legally protected, but still understand their significance in terms of things that aren’t legally protected.

Speaker 2:

Welcome to the award-winning podcast, Lawyer 2 Lawyer with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

J. Craig William:

Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams, coming to you from Southern California. I write a blog named May It please the court and have two books out titled How to Get Sued and The Sled. I also have a book coming out called Bad Decisions, 10 Famous Trials That Change History. Well, section three of the 14th Amendment reads In part, no person shall hold any office, civil or military under the United States, 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 against the same. In other words, if you’ve taken an oath to support the Constitution, you can’t engage in insurrection against the Constitution.

On December 6th, 2023, the Colorado Supreme Court heard oral arguments in a landmark case to bar former president Donald Trump from Colorado’s 2024 ballot. Those arguments stem from a case called Anderson versus Griswold was brought by plaintiff’s whose experts testified and cited Trump’s violent rhetoric and statements about extremist groups claiming his words ultimately led to an insurrection at the Capitol United States Capitol on January 6th, 2021. In response, Trump’s defense attorneys classified his words as metaphorical. Well, Colorado District Judge Sarah Wallace ruled that former President Donald Trump did in fact engage in an insurrection on January 6th, but she did not remove his name from the Colorado ballot. That failure led to an appeal of that ruling to the Colorado Supreme Court with a decision expected this coming January, 2024. So stay tuned for that, but in the meantime, we’re going to talk about what constitutes rhetoric, what constitutes hate speech, what constitutes free speech?

Did former President Trump’s rhetoric lead to an insurrection on January 6th, 2020, 21? We have a decision that says so, but how powerful are his words? Well, today on Lawyer 2 Lawyer, we’re going to be discussing the impact of his rhetoric. We’ll take a look at former President Trump’s history of violent rhetoric and how that kind of extreme rhetoric can lead to political violence and to help us better understand this issue. We’re joined today by Dr. Pete Simi, professor of sociology at Chapman University. Dr. Simi has studied extremist groups and violence for more than 25 years, conducting interviews and observation with a range violent gangs and political extremists. Dr. Simi recently testified on former President Trump’s violent rhetoric in the Colorado 14th Amendment trial. Welcome to the show, Pete.

Dr. Pete Simi:

Oh, thanks for having me.

J. Craig William:

Well, Pete, let’s get a little bit of background about you first. How did you get involved in sociology and how in the world did you get started studying extremist groups?

Dr. Pete Simi:

Well, a bit of a long story. It’s kind of been a lifetime journey of sorts. When I was five years old, I watched Roots, the miniseries that originally aired on tv. I think it’s still the highest rated miniseries in television history, and I remember a week long series learning about the history of the United States in terms of the central role that slavery played in our country’s past history and the implications that it has still continues to have for society in terms of affecting social relations in so many different ways and learning that at such a young age, it really did, I think, sensitize me to certain kinds of issues. Those kinds, that kind of exposure continued throughout my childhood. My mom was very intentional in raising me to learn about different types of social problems, including racism among other things. We watched a documentary together when I was nine years old.

This would’ve been 1981. PBS ran a documentary series about the reemergence of the Ku Klux Klan, which the early eighties, late seventies was not a time unlike what we’re facing today and have been facing over the last decade or so. That certainly had a major impact on me in terms of wanting to understand how people came to embrace hatred as a central part of their worldview and an understanding of themselves and other people. I still remember one of the Klansmen being interviewed. They asked him what he would do if they came to power, if the Klan came to power, and he said they’d boat all the black people back to Africa. But of course he didn’t say it like that, and I just remember the hatred, this strong emotion that he was expressing that came out of his mouth and the look in his eyes, and I felt very moved in terms of wanting to understand how this person got to that point in their life.

J. Craig William:

How does that kind of hatred develop? Where does it come from?

Dr. Pete Simi:

Well, there’s not a single path. There’s not a single factor. It’s complicated. It’s deeply rooted in our society, certain beliefs and emotions. Our central,

J. Craig William:

Does it go back to tribal? Does it go back to just simply you and I have to preserve what I have and keep you away from getting what I have?

Dr. Pete Simi:

That’s a big part of it. There is that basis to it that always makes us susceptible to hatred. However, understanding yourself as different from others doesn’t require hatred. So you can have a sense of difference without there being hatred. So that is certainly an important piece of it and a starting point, but other things have to be present as well as that tribal kind of us, them distinction

J. Craig William:

What things?

Dr. Pete Simi:

Well, historical events, economic systems, cultural practices that become traditions over time. These are things that can take many different forms. They don’t have to take the form that supports or reinforces the development of hatred. Unfortunately, when you look at, for instance, the role of slavery as an economic system in the role that it played in our country’s history, that really helped develop a way of thinking and feeling that pitted, that really helped develop racial categories as systems and really assign certain characteristics to these different racial categories that helped legitimize and rationalize slavery as an economic system. And so that’s not something that had to happen. It wasn’t inevitable. That,

J. Craig William:

And slavery’s been time immemorial. I mean, since one culture has conquered another, they’ve taken slaves.

Dr. Pete Simi:

Well, sure there is a substantial historical precedent for the role of slavery within societies.

J. Craig William:

Since you started studying extremism as a small child, it almost seems extreme in itself, but what have you learned from 25 years of researching these kinds of extremist groups? How would you say that they fit into society and society reacts to them?

Dr. Pete Simi:

I think it’s important to recognize that we’re talking about a wide spectrum of groups and people. They don’t all fit the same mold. I think sometimes when you hear the term extremist, white supremacist, anti-government extremists, these term conjure up certain images, almost stereotypical images. While there may be some truth to those kind of conceptions, they’re not the whole story. And what really exists is a much broader spectrum of people and groups that cut across a fairly wide range. And so you have people, for instance, I think one of the misconceptions is that individuals who are attracted to these types of groups movements are primarily poorly educated and come from lower economic strata of society. That’s just simply not the case. You find people of a wide range of educational backgrounds, people from affluent backgrounds, people from the middle class, all different socioeconomic status, all different educational levels who may be attracted to these ideas and who may become deeply involved in these types of groups and movements. So I think that’s,

J. Craig William:

We had two Lawyerist outside holding rifles outside of their home in San Francisco. I would say that’s extremists. Would you?

Dr. Pete Simi:

Yeah, absolutely. And a good example of what I’m talking about

J. Craig William:

When you talk about extremism, it’s easy for us here in the United States to be able to say like Hamas is an extremist and the nine 11 terrorists we’re extremists. But when you talk about extremist groups within our own country, how do we as a society deal with the kind of political Division that’s arisen and has it really arisen from these extremist groups?

Dr. Pete Simi:

Well, one of the ways we’ve dealt with it is to deny it, to neglect it, to minimize it, and that’s becoming increasingly difficult to do over the last few years. But traditionally, that’s kind of been a big part of the approach and that allows it to fester in certain ways, has allowed it to fester in certain ways that make it even more difficult. Now, to really try and be proactive and address this extremism is difficult when it comes from within because it represents your next door neighbor, potentially even your family member who may be steeped in these kind of beliefs and feelings. So a, it’s much easier to recognize and develop a defense system against foreign outsiders. Those that represent a threat from outside your society, much more difficult when it’s internal. So the recognition part is half the battle, but once you have the recognition, obviously that’s not enough. There needs to be some consensus about what we’re going to consider acceptable and what’s not acceptable. So for example, threatening public officials, we’re seeing more and more of that coming from various segments of society and it’s becoming mainstream and normalized to some extent,

J. Craig William:

Normalized even to the point of physical attacks, for example, on Pelosi’s husband. Let’s talk about exactly what you just said here, free speech, hate speech rhetoric. How do we define these and where do we draw the lines as to what’s free speech and what’s hate speech and what’s just rhetoric?

Dr. Pete Simi:

Yeah. Well, we historically, for good reason have put a premium on the importance of protecting speech across the political spectrum and including the most unpopular speech. It’s always easier to protect speech that most people agree about, and it doesn’t really represent anything controversial, much more difficult to protect speech when it’s more controversial or unpopular and potentially threatening. And so determining where those lines are difficult, they’re not easy, but we can protect speech and still recognize that not all speech is protected. It never has been within our framework, and certainly threats, for example, that we are just talking about fall outside of the line of protected speech threatening individuals in terms of bodily harm or loss of life is not protected.

J. Craig William:

Right. The famous example of free speech in the Supreme Court is that you can’t yell fire in a crowded theater. So how does that fit in with hate speech and how does that fit in with just simply what people might call rhetoric? But those are questions I’m going to ask in just a minute. We’re going to take a quick break to hear a word from our sponsors. We’ll be right back and welcome back to Lawyer 2 Lawyer. I’m joined by Dr. Pete Simi, professor of sociology at Chapman University, and at this point, I should probably also disclose that I was also an adjunct professor at Chapman University teaching legal writing, but I don’t think Pete and I ever met. Anyway, Pete, the question that I asked right before the break was how do we deal with these three aspects of hate, speech and rhetoric, and where’s the line? Where does it be free speech to be able to save fire, but yet not be able to save fire in a crowded theater? How do you divide those two, and then where’s the line as it extends out?

Dr. Pete Simi:

Well, when you use the term of course, hate speech is not so much a legal term. It’s more of a political term, you might say. And for researchers, it’s a social scientific term because hate is a construct that we study, but certainly not all hate. Much of the things that might fall under the banner of hate are not against the law, and as it probably should be, because hate is so broad. Hate really can constitute a number of different facets of things people say, things people do, and certainly the things people believe. And we want to be careful about providing the safeguards, the necessary safeguards to protect even something like hatred. But hatred also has a relationship to things like violence, for example. And so while dehumanizing speech words that dehumanize others might be legally protected, that doesn’t mean we shouldn’t understand how important dehumanizing language can be in terms of facilitating violence, which is not legally protected. So these relationships are complicated. They’re difficult to navigate. We can look at things that are legally protected, but still understand their significance in terms of things that aren’t legally protected.

J. Craig William:

Right. Well, I’d like to turn and get into what we came here to talk about. We’ve got kind of a little bit of background about it now. You testified as an expert on rhetoric and speech in a recent trial in Colorado for the 14th amendment, the third cause of it about the insurrection and whether Trump’s speech constituted insurrection from the standpoint of facts and violence that led to that insurrection or led to what the events that occurred on January 6th without really addressing the legal aspects of the word insurrection. Let’s talk about Trump’s language and your testimony.

Dr. Pete Simi:

Absolutely. First thing to understand about Trump’s language is that it doesn’t start on January 6th. One of the, I think most important aspects of understanding what happened on January 6th, not only his speech, but the entire occasion, the entire event, the violence that happened on January 6th, we have to go back in time. And so for Trump’s role in the violence that happened on January 6th, there’s a number of places we could go back as starting points. I do think one of the places that makes sense to start is his role in terms of before he ran for president, even in terms of the role he played in promoting Birtherism, which was the conspiracy theory that Barack Obama had been, was not an American citizen, was not a US citizen, therefore was ineligible really to serve as president, and his administration was illegitimate. Basically, Trump played a major role in that, and that really kind of put him in a certain orbit along with folks like Alex Jones, one of the most influential conspiracy theorists over the last decade or so, really actually two decades. And that helped develop kind of a relationship between Trump and Far-right? Extremists that then continued to develop and really in 2015 kind of starts to take new forms, and as he’s running for president, ultimately elected the president,

J. Craig William:

How did his full page New York Times ad play into this?

Dr. Pete Simi:

Well, that’s a great point. Yeah. I say there’s a number of different starting points that we could go back to, so we could certainly go before his advocacy of birtherism. We could go back. I mean, there’s obviously been allegations about his father being involved in the Ku Klux Klan. There’s a lot of different starting points that we could look at in terms of his,

J. Craig William:

And as you bring it forward closer to January 6th, there’s been a whole bunch of code words and other kinds of things that happened. What’s all that about?

Dr. Pete Simi:

Well, the relationship he developed with far right extremists really is based on communication, first and foremost, and far right. Extremists have a whole infrastructure in terms how they communicate with each other, how they communicate with folks who are not part of their community or not part of their culture. In other words, outsiders. They use lots of things like, and these are somewhat common to people more broadly as well. They’re certainly not exclusive to far right extremists, but things like building plausible deniability by using doublespeak that is using words that have one meaning to insiders and another meaning to outsiders, or at least an unclear meaning to outsiders.

J. Craig William:

1776.

Dr. Pete Simi:

Yes. And specific to this case, yes, that’s a term that for insiders meant to call sub revolution violent revolution, whereas for folks who aren’t steeped in that culture, they might just see it as a historical reference.

J. Craig William:

Is that really any different, the jargon that develops in clicks and in groups, that there’s a particular language that millennials have about abbreviations, LOL and all the rest of those. Is that similar in style to that? Is that sociologically what’s happening here?

Dr. Pete Simi:

Yeah, exactly. No, that’s the sociological point is that when we talk about this specifically related to far extremists, specifically related to the former president, we are talking about generic social processes that are true for subcultures and communities of various sorts across the board. But what’s distinct, at least in some respects for far right extremists, is the relationship between these communication strategies and promoting and committing violence. Now, it would be distinct from, for instance, like some of the groups you just mentioned, generational cohorts like Gen Xers or others. Wouldn’t it be distinct though from say, subcultures like organized crime, which use very similar types of communication strategies? So lots of secretive codes. These are common among groups that are organized around criminal activity and violence. So in that respect, far right extremists are very similar to maybe more widely understood criminally oriented groups like the Mafiaa.

J. Craig William:

And one of the questions that Trump’s attorney asked you in the hearing that you participated in was focused on the word fight. And he said, look, I’m going to show you a tape. You say that Trump is saying fight, go and fight, and that’s inciting violence, but yet here’s a tape of all Democrats, all politicians on the other side of the spectrum using the word fight. How do you distinguish that?

Dr. Pete Simi:

Well, what I tried to explain during my testimony was the importance of context. There isn’t anything magical about any particular word per se. Words have meanings that are derived from their usage, which is really about context. And the examples that the attorney provided during the trial, really they lacked any kind of pattern of where the speaker, or at least it wasn’t presented as part of the questioning. There was no presentation of any patterns where a speaker or the speakers had over time, used certain phrases to promote violence, used certain phrases to endorse violence after it had been committed by their supporters. All of that was present. All of that was part of my testimony about how I came to the opinion I came to about Donald Trump’s role in terms of January 6th and the pattern, the relationship he had developed with FarEye extremists. So to really, you have to compare apples to apples in those questions that we were comparing apples and oranges.

J. Craig William:

Pete, at this time, we’re going to take another break to hear a word from our sponsors. We’ll be right back and welcome back to lawyer, lawyer. I’m back with Dr. Pete Simi, professor of sociology at Chapman University. We’ve been discussing the January 6th rhetoric and what leads up to it. But let’s get to the point that was raised trial. Is Trump’s speech protected by the First Amendment? Is that free speech or is it speech that’s hate speech or inciting violence? How do you decide that? Who decides?

Dr. Pete Simi:

Well, that’s why we have a legal system. That’s why we have judges. That’s why we have juries. This is the beauty of our system and why we need to be very careful about protecting it. I offered an opinion. I’m not a legal scholar. I’m not an attorney. My opinion was specific to the words and other things that he had done over time, and in particular, the speech that he gave on January 6th and how that was part of a larger communications, a larger set of communication strategies, a larger relationship that he developed with frankly individuals and groups who had known histories of violence, like the proud boys, like the oath keepers, like the three percenters people that he had in various ways praised previous to January 6th in terms of the violence that they had committed. So this was in that respect, then your words do matter, and they certainly can cross thresholds, legal thresholds, and in those instances are not protected.

J. Craig William:

It seems not. But let’s see. Certainly you had a judge agree with you. The factual finding that the judge made was that the words were used to incite a riot and he participated in an insurrection. The argument then turns to legal aspect, which is going to go to higher courts about whether or not it is legally an insurrection. But I want to turn to a different question, and I don’t mean to abbreviate talking about Trump, but in the speech that he has. But in that context of Trump’s speech and the communication that he has with these extremist groups, how do the polarized parts of society communicate with one another? Everything I’ve read says that it’s impossible for either side to talk to one another.

Dr. Pete Simi:

Well, that’s a complicated question. I don’t think there are any easy answers. I think it takes a lot of efforts at multiple levels. So I mean, there’s the most basic level At the individual level. We all make decisions about how we conduct ourselves, how we engage in conversations, the commitments or obligation we may feel to engage in conversations in a civil manner. And how much do we hold ourselves accountable? How much do we hold ourselves to task, to follow through on those and to maintain a civil posture even with people who see the world in fundamentally different ways and may stand for things that we find reprehensible? Do we still maintain our commitment to being civil in the faith? And that’s not, first of all, it’s easier for some people than others, especially those who are maybe the brunt of the attack in some respects are obviously that’s a much greater challenge than for those who may not be in direct fire of an attack and fire.

I mean, in the figurative sense, not necessarily literal, but part of the problem is that we are dealing with things that is often unclear, whether it’s meant to be figurative or literal in terms of things that people are expressing and proposing and policies and programs that people are advocating for. So that makes it very difficult. We’ve got to, I think, find issues where we can reach some kind of bipartisan consensus. One of the things I saw recently on M-S-N-B-C was an interview that Rachel Maddow did with Liz Cheney, and they don’t agree on much of anything, but they do agree on the importance of trying to build resilience around our democratic system that seems to be under attack in many respects. And so finding those kinds of opportunities to have conversations with people that you may disagree with about a lot of things, but you can at least agree about the importance of maintaining our democracy. I don’t

J. Craig William:

Know, but can you, I mean, from the rhetoric that I’ve heard, it almost seems like we have far right extremists wanting to dismantle the government, wanting to stop social services, wanting to do as little regulation as possible. It seems like there’s almost a fundamental disagreement on the basics of whether we are to be a socialist style democracy or whether we are to be a democracy or if at all, something completely different. Do you see that or am I off my rocker?

Dr. Pete Simi:

No, I don’t disagree with you at all on that. There are some major fundamental differences in terms of worldviews that we’re dealing with that make it very difficult to have any kind of cohesiveness and not be completely polarized. Certain things have to, I think, happen in terms of you want to try and reduce polarization, but you also can’t do that at the expense of allowing those who are promoting essentially anti-democratic measures to have some kind of be able to have cover of sorts. You can’t allow anti depolarization to provide cover for anti-democracy. And so that is a definite problem if people are endorsing or promoting, for instance, voter suppression, that’s just fundamentally anti-democratic, and there should be zero tolerance for that. And so those who see that as anti-Democratic need to be assured to do whatever’s possible to prevent that from moving forward. So there’s some things that we, I think have to have zero tolerance for. And then other things where we’ve got to maybe try and find some opportunities for bipartisanship.

J. Craig William:

I mean, I don’t mean to be pessimistic here, but are we looking at the rise in the fall of the United States? Are we at a point where some of the Northwestern states are saying, I want to secede. There’s parts of Texas that have said the same thing. There’s different parts of the country that disagree to the point where are we united? Are we at any point on United States, or do we need to be a divided states?

Dr. Pete Simi:

Well, we are in a very dangerous spot. There’s no doubt about it, in my view at least. And if we think we are not susceptible to anti-democratic forces to the attractiveness frankly, of authoritarianism, because we have to be real clear-eyed about this, authoritarianism has certain kinds of things that are attractive to people. Obviously history proves that point pretty clearly. So we have to be really clear-eyed about why some people are moving in the direction of being attracted towards authoritarianism and how fragile democracy is in the best of circumstances, and we’re clearly not in the best of circumstances.

J. Craig William:

Right. Well, we’ve just about reached the end of our program. So it’s time to kind of ask you my quintessential question of what questions I asked you that I should have.

Dr. Pete Simi:

I would say it’s really an extension of what we’ve been talking about is for people to recognize the current moment and the danger of a Trump administration in 2024. First of all, the danger it represents is of a magnitude that is far greater than what we saw in 2016 for a lot of different reasons. So I think we need to understand whatever a person’s feelings are about the Biden administration, whatever a person’s feelings are about two party system to understand the threat that a Trump 2024 represents to really fully appreciate how much that will take us in the direction of guaranteeing, I think really not just threat, but really a guaranteeing of authoritarianism should he be reelected in 2024.

J. Craig William:

Let’s also let our listeners get in touch with you and give us an opportunity to learn a little bit more about you.

Dr. Pete Simi:

Well, I can be reached by my email, which is SIMI at Chapman, C-H-A-P-M-A n.edu. And my colleagues and I have a new book that was just published Out of Hiding, and it’s a book about the resurgence of white supremacist extremism since Barack Obama’s election in 2008. And we do conclude that book with some ideas about some kind of prescriptions for how we can try and counteract this type of extremism.

J. Craig William:

Great. Thank you very much, Peter. It’s been great having you on the show.

Dr. Pete Simi:

Thanks for having me again. Appreciate it.

J. Craig William:

Well, this is, Craig’s ran about today’s topic. You may think you already understand what I think about it, but I think Peter Simi warning at the end of the show was probably the best thing that can be said, which is the November, 2024 election will lead two ways. It’s going to lead us to an authoritarian style government, or it’s going to lead us to a continuing democratic style government. It’s a major turning point in the country, and our country has already made a decision that may lean toward an authoritarian type of government in the future. And I think as a consequence of that, we may start to see some of the states make individual decisions that remove themselves from what’s now called the United States, and we will become undivided states. It’s your choice. Well, that’s it for Craig’s Ran on today’s topic. If you like what you heard, please rate us on Apple Podcasts or your favorite podcasting app. You can also visit us at legaltalknetwork.com where you can sign up for our newsletter. I’m Craig Williams. Thanks for listening. Please join us next time for another great legal topic. Remember when you want legal thank Lawyer 2 Lawyer.

Speaker 2:

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