Tired: Trump Indictment Criminalizes Free Speech! Wired: Cop City Indictment Criminalizes Free Speech!
Anarchism... communism... something something.
While Fulton County prosecutors dig into the criminal conspiracy to illegally swap the state’s electors, the Georgia AG’s office just secured its own criminal conspiracy indictment in Fulton County. This one targets the people protesting the “Cop City” training facility for the criminal conspiracy of being dirty hippies.
At least that’s the best explanation we can come up with for this shoddily drafted indictment that spends entirely too long on passages like this:
Collectivism is the idea that individual needs are subordinate to the good of the whole society. That is, decisions are made based upon what is best for the group and not necessarily what is best for individuals. In embracing collectivism, individuals are expected to sacrifice personal income, personal liberty, or personal property if it benefits society as a whole. The decision of whether an individual should sacrifice their own individual needs is not made by the individual. Rather, in a true collectivist society, the society as a whole decides whether the individual must forfeit their own needs or property if it is deemed to benefit the society. Nevertheless, in an ideal collectivist society, individuals already make the decision to donate to the collective without prompting from others.
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As Andrew Fleischman of Sessions & Fleischman put it:
WTF indeed.
It’s as if Georgia Deputy AG John Fowler grabbed vague passages about political philosophies straight off Wikipedia and then dumbed them down about 300 percent.
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Anarchy is a philosophy that is opposed to forms of authority or hierarchy. Beginnings of anarchist ideals date back centuries, though usage of the term “anarchy” did not exist until the 1800s. Over time, various philosophical forms of anarchy have emerged. Numerous anarchist philosophies exist, though anarchists are not required to subscribe to one particular belief of anarchy. Rather, the notion of anarchy, being grounded in an anti-authority mindset, primarily targets government because it views government as unnecessarily oppressive. Instead of relying on a modicum of government structure, anarchy relies on human association instead of government to fulfill all human needs. Some of the major ideas that anarchists promote include collectivism, mutualism/mutual aid, and social solidarity, and these same ideas are frequently seen in the Defend the Atlanta Forest movement.
Baby’s First Bakunin.
The thing is, these extended passages describing “anarchism” and “collectivism” are as facile as they are unnecessary. If the AG’s office is right that defendants conspired to commit broad-based property damage and/or violence, then that’s the crime. What would any of this McCarthy-era Red Scare rhetoric have to do with anything?
The answer, it seems, is that prosecutors want to tie a whole lot of non-criminal activity by a whole lot of defendants into the criminal conspiracy.
(222) On or about April 29, 2023, CAROLINE TENNENBAUM, ABEEKU VASSAIL, and JULIA DUPUIS did distribute flyers calling Trooper Jonathan Saucedo a murderer in Trooper Saucedo’s neighborhood in Bartow County, Georgia. This is an overt act in furtherance of the conspiracy.
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Now — once more for the Jonathan Turleys of the world who refuse to grasp this — this is an entirely legal and indeed constitutionally protected act, but it can still be an overt act in furtherance of a criminal conspiracy. Turley and other right-wing commentators have bemoaned the Trump indictment for “criminalizing” political speech, but that’s not what’s happening in an indictment like this. Both indictments have to prove the existence of an intent to commit a criminal act first, and then they need to show that the conspirators took steps to realize that conspiracy whether or not those steps on their own would be legal.
But the overt act still has to have something to do with furthering the ultimate criminal goal.
If Trump and team actually conspired to commit election fraud by, among other things, inducing legislators to illegally certify phony Electors in Georgia, then otherwise protected speech acts like complaining about fake voter fraud can be overt acts to the extent they were designed to further the scheme. In that case, by simultaneously putting pressure on and cover to state legislators to take the illegal action.
But handing out leaflets doesn’t tie all that well to property damage. If a conspiracy is limited to sabotaging construction vehicles, it’s hard to rope in defendants who weren’t buying equipment to destroy vehicles. And the Cop City protests are a whole lot bigger than the incidents of alleged property damage. Though if the prosecutors spin protesting police brutality as “anarchy” and “anarchy” as inherently “violent,” they can pretend that everything connected with protesting the facility is in furtherance of a criminal enterprise even if it had nothing to do with the few people actually committing property damage.
And they make a predictably bumbling effort to draw that connection. First, a cherry-picked statement from a protester:
Are we more concerned about the “violence” of destroying construction machinery and police property, or about the violence of capitalist exploitation, environmental devastation, and police murder?
And the chaser:
As noted by the anarchist above, the militant anarchists engage in violence to bring attention to their own political goals and their perceived government violence.
No, it wasn’t. The “anarchist above” said the exact opposite actually. The passage mocks the idea that property destruction is “violence.” That’s what the quotation marks are for. This is the best they could come up with for this proposition!
Both indictments include protected speech as “overt acts.” That’s fine. But one indictment identifies the underlying criminal enterprise as election fraud and the other as political protest itself. The latter is actually seeking to criminalize speech.
It would be like Fani Willis claiming some Republicans tried to commit election fraud and therefore the GOP — as an entity — exists to perpetrate election fraud and merely campaigning for Trump amounts an overt act in furtherance of getting people to belong to an election fraud enterprise.
This is a claim that Willis notably does not make, because she is not a hack.
Yet this is the hook the AG’s office’s uses to claim that protesting Cop City is itself a criminal enterprise. Because handing out flyers asking people to protest is not in furtherance of a plan to destroy a bulldozer. The juvenile descriptions of anarchism and collectivism are in this indictment so the Cop City prosecutors can try to tie up distributing leaflets into this criminal enterprise.
And including this as an overt act despite having nothing to do with actual property damage proves it.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
