This Is All Really Bad

After days of rage tweeting, I reflect on how thousands of people suffering from mass delusion succeeded in incapacitating an entire branch of the U.S. government.

Lyndon B. Johnson was sworn in as the 36th President of the United States two hours and eight minutes after John F. Kennedy was shot. On Wednesday, of this past week, thousands of people, at least hundreds of whom stormed the U.S. Capitol building, incapacitated another branch of government — the U.S. Congress — for six hours and thirty four minutes. And it was easy.

After all, they walked right in — or, in some cases, were let in by the very people, the U.S. Capitol Police, who took an oath to protect it. They then broke windows, ransacked offices, urinated on our floors, and took the floor of the House. All the while, the Confederate Flag, that indelible stain on our country, was carried in the same hallways where the Union troops drilled during the Civil War.

It was disgusting. Make no mistake.

Yet, in the intervening days, politicians, journalists, and commentators have debated what exactly to call the events on January 6th and the people who had a role in them. How we communicate and the words we choose to do so, after all, matter. If 2020, and the years before it taught us anything, these choices can change reality itself. As I’ve noted elsewhere, “we define our reality through a common agreement on what is real not necessarily through what is real.”

I have to say though — on what to call the attack on the Capitol and what to call the people who perpetrated it ?— I have little patience for these debates. It was an insurrection, it was terrorism, it was a mob, it was criminal, and it was a race riot. It was perpetrated by insurrectionists, terrorists, rioters, criminals, and white supremacists.

It was also treasonous and seditious. It was all of it.

And maybe all of this makes me undisciplined. But watching it unfold on TV, I could not push my anger down any further; there was nowhere for it to go. If there is ever a time to use these words, it’s now. These words were made for for these times: for times where armed insurrectionists — armed white supremacists — take over an entire branch of government.

These people should be charged, tried, and convicted. They should feel the full weight of the United States government heaped upon them. There should be no mistake after the dust settles, years into the future, that this conduct and conduct like it will not be tolerated; it won’t be explained away; it won’t be forgotten.

And what should we do with the politicians who instigated the insurrections, who egged them on? There’s been plenty of debate about this too. But, as with the insurrectionists, I have little patience for these debates too. These people should not be coddled; they should be banished — forever. And they should, perhaps for the first time in many of there lives, feel shame.

Of course, as the walls have closed in on these traitors — Donald Trump, Ted Cruz, Josh Hawley, and others — we’ve heard them cry out and claim the First Amendment. But to me, someone who’s spent more than a decade studying the First Amendment and, later, defending it in courts, these appeals sound like nothing more than meager and misguided whining.

Initially, and most importantly, the First Amendment does not guarantee these instigators an audience. The First Amendment does not require that the rest of us suffer their insolence.

The First Amendment also does not guarantee your station in society. The First Amendment is not some sort of insurance policy to be cashed in when you join the band of rogues, to save you from the consequences of your own sedition.

And, as has been pointed out ad nauseum, the First Amendment protects you only from government action — it doesn’t protect you from the rest of us. Of course the same people who demand that their First Amendment rights be respected know this too; they are nihilists, but they are highly educated nihilists.

Even if we treat these appeals as appeals to free speech philosophy and not the First Amendment specifically, there is no salvation for these traitors. Nothing in liberalism requires society to tolerate incitement that aims to impose authoritarian, anti-democratic control on it. Were there any doubt about that, surely it’s dispelled after the very same incitement has already led to a successful, armed insurrection.

A good faith desire to avoid overreacting, and to avoid the consequences that might follow from that overaction is understandable, but I don’t think it’s prudent here. The gravity of what happened on January 6th makes overreaction exceedingly unlikely as a proportional matter. Few moments in our history are deserving of such swift and utter condemnation of both the insurrectionists and their enablers. To hell with them.

Media Lawyer. Adjunct Professor/Mass Media Law at Fordham University School of Law.

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