They Shoot Horses, Don’t They?

by Jim McCarthy

A month ago, a Bacon’s Rebellion column (“Commonwealth Attorney Nullification“) took issue with a national newspaper op-ed in which a Commonwealth’s Attorney pledged he would never prosecute a woman for having an abortion, no matter what Virginia law might say. The BR author suggested that such thinking would lead to anarchy.

The CA’s words are certainly provocative, to be understood as political bombast in his re-election campaign. The words are not a threat of violence and, at the same time, not abstract. Some may choose to characterize them as anarchical. Without more, their dangerous portent will be measured at the polls.

In 1919 the U.S. Supreme Court found in Schenck v US a clear and present danger in the language of protestors against the military draft as a violation of the Espionage Act of 1917. The ruling is best known for Justice Oliver Wendall Holmes’s phrase about “shouting fire in a crowded theatre” was not permitted free speech. The prosecutor’s vow might better be understood as shouting fire in a deserted theatre.

The lower NY court in Schenck had opined that the protesters’ speech was not “the expression of a philosophical abstract.” In lay terms, the court concluded that the protestors meant what they said even though the speech was not accompanied by any overt acts. The polar distances between a crowded and deserted theatre are those populated by the public. The conservative curmudgeonly concern in the Bacon’s Rebellion article — that the prosecutor in question asserted the right to pick and choose the laws he enforced — relied entirely upon the words themselves to arrive at its conclusion.

From the afternoon of January 6, 2021 to the early hours of the next morning, 27% of the members (147) of Congress voted to reject the election results of the elector slates and popular votes of two states, Arizona and Pennsylvania. Respectively, the two presented 11 and 20 electoral votes and 3.3 million and 6.9 million popular votes. The vote to reject would not have been sufficient to reverse the national results. Four (36%) of Virginia’s 11 House members voted to reject the results from the two states.

Since there were two separate votes in each chamber of Congress, it cannot be convincingly asserted that the votes were symbolic or mere philosophical abstracts. The four concluded that an overt act of voting, without effect upon the final result, was superior to their mission in the peaceful transfer of presidential power. One of Virginia’s four issued a statement to this effect:

My oath to this office is to defend the Constitution and faithfully discharge my duties. Regardless of my personal opinion of who I believe is best to lead this country, this is bigger than just this election. This is about upholding the Constitution and ensuring integrity and faith in elections to come. Americans’ concerns deserve to be heard; we must have faith in the electoral process and continue to take steps to ensure fair and free elections.”

A Bearingdrift article (01/09/2021) offered 43 types of things the Congressman might have undertaken to address alleged election fraud instead of voting to reject results.

Was the unsuccessful vote to reject a mere “philosophical abstract” as characterized by the NY court?

Circling back to the shouts of fire in a deserted theatre, there is a Congressional primary candidate campaigning (VA-02) who has doubled down on a prior Twitter post:

Audit all 50 states. Arrest all involved. Try all involved. Convict all involved. Execute all involved.

The statement is unambiguous in its logic to conclude in an overt act. Following the results of the 2016 presidential, complaints from the losing side were fortified by the popular vote results which contradicted the Electoral College victory by 2.9 million. In 2020, the popular vote margin for the winner of the Electoral College was about 7 million. The results from the two states could have been readily accepted without objection. To date, the American public has not been afforded an adequate explanation for rejecting the results in Arizona and Pennsylvania. Admitting only that Biden is President does not vitiate the conspiracy-laden virus about a big steal.

Fifty years after Schenck (Brandenburg v Ohio) SCOTUS narrowed its view to require that the words in the theatre are lawful unless the speech in question is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

Thus, where the article in BR identified words to reach a conclusion of anarchy, the rejection votes on January 6th more powerfully persuade that an overt act of anarchy occurred, directed to inciting or producing imminent lawless action. At a minimum, the naysayers engaged in an act of nullification that portended anarchy.

Traditionally, euthanasia for an injured horse was deemed merciful. In today’s politispheric theatre, mercy is infinitely strained as the public is reliably treated to indifference and disregard by campaign rhetoric, campaigners without boundaries.

Jim McCarthy is a retired New York attorney now living in Virginia.