< Previous Post||Next Post >

I have emerged from bar study to write a quick post inspired by a bit of legislative news my boyfriend sent me. This dispatch from hell world, called the Unmasking Antifa Act, may at first seem an incredibly alarming setback after the J20 victory. But while the bluster of this Act may turn into something truly horrifying deep in the recesses of the House Judiciary Committee (I highly doubt it given all the other contentious issues), at this point it is a bit of a chuckle in an otherwise dismal news cycle. The reason is pretty straightforward: it is mindbogglingly unconstitutional. Totally unconstitutional. So incredibly unconstitutional that even in the age of President Swiss Cheese Brain it is impossible to take seriously. Let’s dive in.

1. State Action? Did You Seriously Forget About State Action?

It was recently the 150th birthday of every Leftist lawyer’s favorite part of the Bill of Rights: the Fourteenth Amendment. The Fourteenth Amendment was not just about Equal Protection however – it has been interpreted as the means by which the rest of the Constitution applies to the states. It makes sense: the country had just wrapped up a bloody civil war because some of the states in its federation thought they should be able to have slaves regardless of what the federal government thought.

However, there’s a big caveat: state action. The Bill of Rights exists to protect us from the government, not from private actors (with the exception of the Thirteenth Amendment). The Unmasking Antifa Act seeks to criminalize private actors who violate the constitutional rights of others. We will get into why Congress’s power to make crimes does not extend into this area, but for now I just want to point out that they are essentially trying to legislate themselves out of the state action requirement, not to mention that the Act exempting police officers seems to be essentially reversing hundreds of years of constitutional law.

Unfortunately it appears Rep. Donovan has forgotten about Section 5 of the Fourteenth Amendment: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” This has been interpreted by the Supreme Court to mean that Congress can only enact legislation that enforces the rights as created by the Bill of Rights. As the Court held in United States v. Stanley (the case that first outlined the state action requirement), “[Section 5] does not invest Congress with power to legislate upon subjects which are within the domain of State legislation…It does not authorize Congress to create a code of municipal law for the regulation of private rights.” And speaking of domain of state legislation…

2. Sorry Y’all, Your Boy Rehnquist Made This Kind Of Law Impossible

Our constitutional republic is federalist, and the Bill of Rights provides in the Tenth Amendment that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Back during the dreaded Lochner era, the Supreme Court interpreted Congress’s power (particularly the Commerce Clause) as narrowly as possible. Then we had the Warren Court, which effectively went the other way and gave Congress almost unlimited power through the Commerce Clause. And then under the Rehnquist and Roberts Courts, there has been a move to limit the Commerce Clause again as noted in my piece linked above.

It’s unclear what, if any, enumerated power of Congress could justify the Unmasking Antifa Act. The legislation is still bare bones and will likely have some attempt at constitutional justification if and when it leaves the Judiciary committee. Maybe it will use Congress’s Spending Power, threatening to take away grants from the states if they do not unmask antifa (but good luck with that given that Roberts has equated even a moderate exercise of the Spending Power to being as unconstitutionally coercive as holding a gun to someone’s head).

But even under Warren era interpretations of the Commerce Clause, the Unmasking Antifa Act does not stand a chance. The Tenth Amendment throughout U.S. history has always been interpreted as reserving what are called “police powers” to the states. Unless the crime involves the “channels” or “instrumentalities” of interstate commerce (like selling drugs, human trafficking, etc.), it cannot be justified by the Commerce Clause. And particularly the Tenth Amendment prohibits the practice of “commandeering.” Commandeering is when the federal government orders state agencies to enforce federal regulatory schemes. It was outlined in Printz v. United States, where the late Justice Scalia ruled the Brady Bill violated the Tenth Amendment by requiring local and state law enforcement to conduct background checks.

The Unmasking Antifa Act basically goes against everything that the conservatives of the legal world have been fighting for as “states’ rights.” It would require the commandeering of all levels of law enforcement and has no relation to interstate commerce. If actual sales of commodities, the firearms in Printz, is not sufficient, I would be curious to see what twisted logic the Roberts court would come up with to uphold this law.

3. Freeze Peaches

As many of y’all reading probably know, I am not a big fan of the First Amendment. But until we have a constituent assembly or amend the Constitution, it is the law of the land. I understand the irony of my position – I wind up agreeing with people like Rehnquisit, Alito, and even the dreaded Clarence Thomas on some of the First Amendment cases.

The alt-right and drafters of the Unmasking Antifa Act both seem to not understand the irony of their position though, or at least do not seem to understand the basics of the First Amendment. Private actors like Twitter refusing to platform bigots is not a violation of free speech. But the Unmasking Antifa Act violates free speech by (1) improper content-based regulation, (2) over-breadth, and (3) vagueness. Under the First Amendment you cannot pick out certain kinds of speech to criminalize, except for a small subset of speech that is contemptible to practically everyone (i.e. child pornography) and speech with legally determinative effect (i.e. discrimination in violation of Title VII by making sexual inappropriate comments at an employee). When police forcibly unmask protesters, they’re usually relying on probable cause of the person committing a crime and avoiding identification. This statute goes too far by criminalizing “disguise” and “mask” themselves, especially since there is no limit imposed by the act on where the “disguise” and “mask” wearing would come under scrutiny.

When a law winds up necessarily prohibiting constitutional speech as well as unconstitutional speech, it is considered overly broad and unconstitutional. A masked person smashing out the windows of the limousine, while it may be my *aesthetic*, is not in any way constitutional. But the Unmasking Antifa Act covers “injures, oppresses, threatens, or intimidates.” As any first year law student will tell you after the hell that is criminal law, mere threats are not enough to even secure a conviction of assault, let alone a prison sentence of up to 15 years like the Unmasking Antifa Act seeks (I guess Rep. Donovan skipped that class). To give you an example of just how much speech like threats and even intimidation is constitutionally protected, in NAACP v. Clairborne Hardware Co. the Court held Charles Evers and others could not be sued by white merchants they were boycotting despite the fact that Evers had advocated for the boycott with at-times violent language, such as “If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.” Again, *aesthetic*, but this time totally constitutional. The Court held that:

Strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases. An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech.

Conclusion

Again, the chances of the Unmasking Antifa Act ever passing Congress, let alone surviving a constitutional challenge, are slim to none, and it is so poorly constructed as to be amusing. But what is not funny is that the purpose of legislation like this is not to actually be enacted into law but rather to continue to perpetuate a white nationalist, anti-social hysteria in this country. The biggest threats to the safety and well-being of people are the food companies inducing a diabetes epidemic in children; the fossil fuel industry disrupting any attempt to combat climate change; an increasingly militarized and unaccountable police force. The far right has been extremely effective, even when it cannot get people on its side, at focusing attention on kneeling football players and trans people in bathrooms. While we do not need to worry about the Unmasking Antifa Act, we very much do need to worry about how the boogeyman of “antifa” has been so successfully invoked to shift focus off of the growing fascist presence in this country.

Thanks to all my supporters on Patreon: Brian Stegner, Sarah Jaffe, Winona Ruth, Michael Rosenbloom, Red_Rosa, John Michie, Jay Schiavone, Daniel Hafner, Aaron Marks, Eli, and my anonymous donors. For $1 a month you can join this list and support my work/help me survive bar study.

< Previous Post||Next Post >

1. State Action? Did You Seriously Forget About State Action?

It was recently the 150th birthday of every Leftist lawyer’s favorite part of the Bill of Rights: the Fourteenth Amendment. The Fourteenth Amendment was not just about Equal Protection however – it has been interpreted as the means by which the rest of the Constitution applies to the states. It makes sense: the country had just wrapped up a bloody civil war because some of the states in its federation thought they should be able to have slaves regardless of what the federal government thought.

However, there’s a big caveat: state action. The Bill of Rights exists to protect us from the government, not from private actors (with the exception of the Thirteenth Amendment). The Unmasking Antifa Act seeks to criminalize private actors who violate the constitutional rights of others. We will get into why Congress’s power to make crimes does not extend into this area, but for now I just want to point out that they are essentially trying to legislate themselves out of the state action requirement, not to mention that the Act exempting police officers seems to be essentially reversing hundreds of years of constitutional law.

Unfortunately it appears Rep. Donovan has forgotten about Section 5 of the Fourteenth Amendment: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” This has been interpreted by the Supreme Court to mean that Congress can only enact legislation that enforces the rights as created by the Bill of Rights. As the Court held in United States v. Stanley (the case that first outlined the state action requirement), “[Section 5] does not invest Congress with power to legislate upon subjects which are within the domain of State legislation…It does not authorize Congress to create a code of municipal law for the regulation of private rights.” And speaking of domain of state legislation…

2. Sorry Y’all, Your Boy Rehnquist Made This Kind Of Law Impossible

Our constitutional republic is federalist, and the Bill of Rights provides in the Tenth Amendment that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Back during the dreaded Lochner era, the Supreme Court interpreted Congress’s power (particularly the Commerce Clause) as narrowly as possible. Then we had the Warren Court, which effectively went the other way and gave Congress almost unlimited power through the Commerce Clause. And then under the Rehnquist and Roberts Courts, there has been a move to limit the Commerce Clause again as noted in my piece linked above.

It’s unclear what, if any, enumerated power of Congress could justify the Unmasking Antifa Act. The legislation is still bare bones and will likely have some attempt at constitutional justification if and when it leaves the Judiciary committee. Maybe it will use Congress’s Spending Power, threatening to take away grants from the states if they do not unmask antifa (but good luck with that given that Roberts has equated even a moderate exercise of the Spending Power to being as unconstitutionally coercive as holding a gun to someone’s head).

But even under Warren era interpretations of the Commerce Clause, the Unmasking Antifa Act does not stand a chance. The Tenth Amendment throughout U.S. history has always been interpreted as reserving what are called “police powers” to the states. Unless the crime involves the “channels” or “instrumentalities” of interstate commerce (like selling drugs, human trafficking, etc.), it cannot be justified by the Commerce Clause. And particularly the Tenth Amendment prohibits the practice of “commandeering.” Commandeering is when the federal government orders state agencies to enforce federal regulatory schemes. It was outlined in Printz v. United States, where the late Justice Scalia ruled the Brady Bill violated the Tenth Amendment by requiring local and state law enforcement to conduct background checks.

The Unmasking Antifa Act basically goes against everything that the conservatives of the legal world have been fighting for as “states’ rights.” It would require the commandeering of all levels of law enforcement and has no relation to interstate commerce. If actual sales of commodities, the firearms in Printz, is not sufficient, I would be curious to see what twisted logic the Roberts court would come up with to uphold this law.

3. Freeze Peaches

As many of y’all reading probably know, I am not a big fan of the First Amendment. But until we have a constituent assembly or amend the Constitution, it is the law of the land. I understand the irony of my position – I wind up agreeing with people like Rehnquisit, Alito, and even the dreaded Clarence Thomas on some of the First Amendment cases.

The alt-right and drafters of the Unmasking Antifa Act both seem to not understand the irony of their position though, or at least do not seem to understand the basics of the First Amendment. Private actors like Twitter refusing to platform bigots is not a violation of free speech. But the Unmasking Antifa Act violates free speech by (1) improper content-based regulation, (2) over-breadth, and (3) vagueness. Under the First Amendment you cannot pick out certain kinds of speech to criminalize, except for a small subset of speech that is contemptible to practically everyone (i.e. child pornography) and speech with legally determinative effect (i.e. discrimination in violation of Title VII by making sexual inappropriate comments at an employee). When police forcibly unmask protesters, they’re usually relying on probable cause of the person committing a crime and avoiding identification. This statute goes too far by criminalizing “disguise” and “mask” themselves, especially since there is no limit imposed by the act on where the “disguise” and “mask” wearing would come under scrutiny.

When a law winds up necessarily prohibiting constitutional speech as well as unconstitutional speech, it is considered overly broad and unconstitutional. A masked person smashing out the windows of the limousine, while it may be my *aesthetic*, is not in any way constitutional. But the Unmasking Antifa Act covers “injures, oppresses, threatens, or intimidates.” As any first year law student will tell you after the hell that is criminal law, mere threats are not enough to even secure a conviction of assault, let alone a prison sentence of up to 15 years like the Unmasking Antifa Act seeks (I guess Rep. Donovan skipped that class). To give you an example of just how much speech like threats and even intimidation is constitutionally protected, in NAACP v. Clairborne Hardware Co. the Court held Charles Evers and others could not be sued by white merchants they were boycotting despite the fact that Evers had advocated for the boycott with at-times violent language, such as “If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.” Again, *aesthetic*, but this time totally constitutional. The Court held that:

Strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases. An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech.

Conclusion

Again, the chances of the Unmasking Antifa Act ever passing Congress, let alone surviving a constitutional challenge, are slim to none, and it is so poorly constructed as to be amusing. But what is not funny is that the purpose of legislation like this is not to actually be enacted into law but rather to continue to perpetuate a white nationalist, anti-social hysteria in this country. The biggest threats to the safety and well-being of people are the food companies inducing a diabetes epidemic in children; the fossil fuel industry disrupting any attempt to combat climate change; an increasingly militarized and unaccountable police force. The far right has been extremely effective, even when it cannot get people on its side, at focusing attention on kneeling football players and trans people in bathrooms. While we do not need to worry about the Unmasking Antifa Act, we very much do need to worry about how the boogeyman of “antifa” has been so successfully invoked to shift focus off of the growing fascist presence in this country.

Thanks to all my supporters on Patreon: Brian Stegner, Sarah Jaffe, Winona Ruth, Michael Rosenbloom, Red_Rosa, John Michie, Jay Schiavone, Daniel Hafner, Aaron Marks, Eli, and my anonymous donors. For $1 a month you can join this list and support my work/help me survive bar study.

< Previous Post||Next Post >