In many ways, the image of a QAnon shaman wearing a bearskin Viking hat howling “stop the steal” through the halls of Congress is the perfect encapsulation of Trump’s used-car salesman version of fascism. The image captures the explicitly authoritarian, utterly minacious, and comedically deranged character of the Trump era. Like so many incidents during the Trump presidency, it was a sign that the republic’s destruction was dangerously possible. Indeed, if the rioters had overtaken the building, brandished their firearm and explosives to the world, and demanded that Congress recognize Trump as the winner of the presidential election, there is a good chance Trump would have become America’s first President-For-Life.
Yet, it did not happen, and not because people were not willing. Someone doesn’t come to a demonstration in full tactical gear for nothing. Rather, it did not occur because the rioters had no direction. A melee was the extent of their mission. Trump—thankfully—gave no explicit orders to institute a putsch, and his personality cult—currently—does not allow another charismatic leader to take charge. The republic was saved, but only through the incompetence of its Commander-in-Chief/Number-One-Enemy. Of course, being saved through incompetency is not reassuring. As long as America’s vicious stew of racial resentments and aggrieved reactionism remains on the stove, there is a chance of it boiling over.
That is why now, more than ever, it is essential for Americans—and especially the Left—to apologetically stand up for civil liberties. In a zeal to prosecute those involved, including expelling members from Congress, the Left runs the real risks of creating the type of legal structure that authoritarians drool over. As leftwing philosopher Ben Burgis noted on Twitter: “The right-wing rioters at the Capitol on Wednesday were scum and it’s incredibly disturbing that the cops let them do it. But they were objectively much less of an anti-democratic threat than whatever godawful Patriot Act Mark II is being cooked up in response.” Indeed, if a competent version of Trump ever came to power, that figure would undoubtedly use a “godawful Patriot Act Mark II” to move America from its current reality TV version of fascism to actual fascism.
Recently, in an attempt to push for impeachment, Rep. Alexandria Ocasio-Cortez (D-N.Y.) has referred to Trump as a “clear and present danger” to the United States. It is important to acknowledge that impeachment is only a quasi-legal process. In that context, referring to Trump as a “clear and present danger” is merely rhetorical, and, legally speaking, meaningless. However, using the reference in the backdrop of an incitement charge, which federal prosecutors have indicated that they are willing to consider for Trump, harkens back to an era when dissent, especially from the Left, was systematically repressed.
The phrase “clear and present danger” refers to a legal test that the United States Supreme Court developed in the case Schenck v. United States (1919). In it, Charles Schenck and Elizabeth Baer, members of the Socialist Party of Philadelphia, were prosecuted under the Espionage Act for printing fliers urging men to resist the draft during World War I. According to the Espionage Act, obstructing a man from registering for the draft was a crime. The prosecution interpreted the fliers as a form of “obstruction,” and the two were convicted. In their defense, Schenck and Baer argued that their literature was protected under the First Amendment. Unfortunately, the Supreme Court disagreed. Writing for the Court, Justice Oliver Wendel Holmes Jr. concluded that if speech could be interpreted as “clear and present danger” to the United States, such as calling on individuals to resist the draft during a war, it was not constitutionally protected.
The inherent vagueness of the “clear and present danger” test justified government suppression of various grounds. In Dennis v. United States (1951), eleven leaders of the Communist Party of the USA were convicted under the Smith Act for calling for the overthrow of the United States government. Again, the defendants argued that their speech was protected under the First Amendment. Their advocacy was abstract and not related to any particular action, legal or otherwise. However, the Supreme Court disagreed. Writing for the majority, Chief Justice Vinson ruled that because there was a chance that the defendants would participate in a violent insurrection, or inspired others to do so, their speech presented a “clear and present danger” to the United States. The Constitution did not protect it.
The “clear and present danger” test remained precedent until Brandenburg v. Ohio (1969). Unlike the previous challenges to the First Amendment, Brandenburg v. Ohio (1969) involved the state’s clampdown on far-right militants. Brandenburg was a member of the Ku Klux Klan, who, while attending a rally, made derogatory comments about Jews and African Americans. He was convicted under the Ohio Criminal Syndicalism statute—which was originally written to outlaw the Industrial Workers of the World—and fined $1,000 and sentenced to 1 to 10 years in prison. In this case, the Supreme Court ruled the law unconstitutional. Writing for the majority, Justice William Brennan ruled that “that the constitutional guarantees of free speech…do not permit a State to forbid… advocacy of the use of force or law violation except where such advocacy is directed to … imminent lawless action.” The “clear and present danger” precedent had been overruled. The test of “imminent lawless action” replaced it as the new standard. According to the “imminent lawless action” doctrine, speakers were only guilty of incitement if they immediately and specifically advocated for illegal actions. Saying “let’s march on the Capitol Building to stop the steal” is protected speech no matter how people act afterwards. However, saying “let’s smash the windows of the Capitol Building” to a crowd that immediately does so is not.
It is worth noting that those who have benefited most from the Supreme Court’s rulings in Brandenburg v. Ohio (1969) have not been rightwing hate groups like the Ku Klux Klan. It has been the Left. By relying on the doctrine of “imminent lawless action” the Supreme Court has ruled that abstract threats against the president by antiwar activists [Hess v. Indiana (1973)], cursing at police officers at demonstrations [Gooding v. Wilson (1972)], and the burning to the American flag by communists [Texas v. Johnson (1989)] are all forms of constitutionally protected speech.
Given this precedent, it is highly unlikely that any of the speakers at the “Stop the Steal” rally, including Trump, are guilty of incitement. Liberal calls to lower the bar of prosecution—from “imminent lawless action” back to “clear and present danger”—to successfully win a conviction against Trump are extremely dangerous. Such a change to legal precedent would undoubtedly undermine decades of precedent protecting freedom of speech; it would essentially return the United States to an era where people with controversial ideas, specifically leftwing groups, were actively hunted down by state officials.
Even more disturbing than Rep. Ocasio-Cortez’s clumsy use of phrase “clear and present danger” is Rep. Cori Bush’s (D-M.O.) call to expel congressmembers who supported “Stop the Steal” rally. Unlike Ocasio-Cortez, Bush has gone beyond rhetoric and introduced a resolution that calls on the House Committee on Ethics to investigate congressmembers sympathetic to the movement. The problem with Bush’s resolution is that outside of sedition—which would mean congressmembers actively conspired with organizers to orchestrate a coup (a charge that is highly unlikely considering how chaotic the whole episode was)—the resolution does not refer to any specific crimes or misdeeds. Instead, it calls for the investigation of congressmembers based on their denial of the presidential election results, for legally challenging those results, and for insufficiently supporting the voting rights of minorities. While all these actions are politically objectionable, they are all also constitutionally protected activities. Indeed, Democrats have used the ceremonial certifying of elections to protest Republican presidents on many occasions. As recent as 2017, some Democrats did do so to protest the election of Trump.
If Congress expelled members on these grounds, it would dramatically lower the standard for expulsion. Again, if history is an example, the outcome of such a move would likely create a precedent that fell most harshly on the Left.
Throughout the twentieth century, only one congressmember was denied their seat for unambiguously political reasons. In February of 1918, Victor Berger, an executive committee member of the Socialist Party of America, was arrested under the Espionage Act. As with Charles Schenck and Elizabeth Baer, the Espionage Act was used against Berger based on his political beliefs. Berger opposed the First World War, but he did not advocate violence nor was involved in a conspiracy to aid America’s enemies during the war.
While under indictment, Berger successfully won the election for Wisconsin’s Fifth Congressional District. After, he was convicted under the Espionage Act on February 20, 1919, and sentenced to 20 years in federal prison. He appealed the decisions and planned to serve as a representative for Wisconsin while the matter was sorted out in the courts. His fellow congressmembers disagreed. They refused to seat Berger and declared the seat vacant. Wisconsin promptly held a special election, but Berger managed to win the special election. Still, Congress refused to seat him. Wanting to avoid further embarrassment, the state of Wisconsin let the seat remain vacant until 1920, where Republican William H. Stafford successfully defeated Berger in a general election.
Despite losing the election, Berger would soon be vindicated. On January 31, 1921, the United States Supreme Court overturned Berger’s convictions in Berger v. United States (1921). Writing for the majority, Justice McKenna concluded that Judge Landis, the judge that oversaw Berger’s case, acted with prejudice toward the defendant; the whole affair was a blatant attempt to prosecute a politically unpopular figure.
If Cori Bush’s resolution is successful, it could lead to the first time in over a hundred years that a congressmember is denied their seat for taking political positions. As odious as the views of Rep. Josh Hawley (R-M.O.) and Senator Ted Cruz (R-T.X.) are, the precedent set by Bush’s resolution would be damaging. If the majority party changes, it is not hard to imagine a Republican controlled Congress using the same tactics to oust leftwing congressmembers from their seats for supposedly supporting Antifa.
The clownish fascist movement that has coagulated around Trump obviously needs to be opposed, but the opposition to fascism is utterly counterproductive if it relies on tactics that send civil liberties back decades. If anything, such draconian moves will make fascism far more likely. Draconian measures to limit political speech—regardless of how erroneous and hateful that speech might be—will empower the state’s repressive tools. If another charismatic reactionary leader emerges, one that can govern with competency, that person would undoubtedly use those tools against their opposition. The danger of that happening is quite real, especially if Democrats are successful in passing a new domestic terrorism law.
The Left has survived in the United States because it has fought for a political environment where controversial views are tolerated. If it turns back on that mission, it will have unwittingly dug its own grave.
