Question 1 On January 6, 2021, members of Congress met at the Capitol building to perform their constitutionally and statutory mandated duty of counting the votes from the electoral college, which finalizes who would serve as President of the United States. On the same day and prior to the joint session of Congress, then-President Donald Trump attended and address the audience of the "Stop the Steal" rally, a political event held about two-hundred yards south of the White House in Washington, D.C., that was organized to protest the outcome of the 2020 Presidential election on the grounds that the election was stolen from President Trump.

The "Stop the Steal" rally was the culmination of a two-month effort to attack the legitimacy of the 2020 Presidential election - an effort that included, but is not limited to:

• Tweets by MAGA supporters to "Stop the Steal" in September of 2020, that undermined certain mail-in voting and warned followers that Democrats planned to cheat in the election.
• After the November 3^rd election, calls by President Trump to stop the counting of votes, especially mail-in votes, in the key battle-ground states of Pennsylvania, Georgia, Arizona, Wisconsin, Michigan. In these states, the early vote total showed President Trump winning the state. However, when mail-in voting was added to the total, Joe Biden won the state.
• Sixty-three lawsuits filed to challenge voting procedures and perceived voting irregularities in multiple battle-ground states. President Trump lost all 63 lawsuits.
• Phone call by President Trump to Georgia Secretary of State Brad Raffensperger in which the President asked Raffensperger to find enough votes so that he would win the electoral votes in George. Raffensperger declined to do so.
• Proposals that would send "alternative delegates" from the battleground states to Congress that would proclaim President Trump, and not Joe Biden, won the state
• A plethora of tweets that undermined the legitimacy of the election
• Calls for MAGA supporters to attend "Stop the Steal" rallies in multiple states, the Million Maga March in DC (December of 2020), and the "Stop the Steal" rally on January 6, 2021.

Just after 12 pm on January 6^th, Trump delivered his remarks to the audience. During his speech, President Trump made several comments that attacked the legitimacy of the election. For example, he compared the November election to elections held in "third-World Countries." He stated that "Our country has had enough. We will not take it anymore and that's what this is all about. And to use a favorite term that all of you people really came up with: We will stop the steal." He stated that he hoped Vice President Mike Pence (who would preside over the session of Congress) would "do the right thing," (and return the electoral college votes back to the Republican state legislators so that they could revote rather than count the vote that occurred in November.) Trump proclaimed that "we're going to walk down, and I'll be there with you, we're going to walk down, we're going to walk down," to demand that Congress do the right thing and, "only count the electors who have been lawfully slated, lawfully slated. I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard." After speaking to the crowd, the President returned to the White House to watch the Congressional proceedings and its coverage as broadcast by Fox News.

By 1 pm, protestors at the Capitol stormed the outer security fences. This occurred even before Speaker of the House Nancy Pelosi banged the gavel that initiated the joint session of Congress. By 1:30 pm, protestors overtook police on the backside of the Capitol. Shortly after 2 pm, protestors entered the Capitol, and security suspended the House and Senate sessions. By 2:20 pm, Vice President Pence and his family were moved to a safe location. At 2:24 pm, President Trump tweeted, "Mike Pence didn't have the courage to do what should have been done to protect our Country and our Constitution." At 2:38 pm, the President tweeted for the support of Capitol police and asks that the protestors stay peaceful. At 4:17 pm, President Trump tweeted a video to his supporters in which he says, "I know your pain. I know your hurt ... We love you. You're very special. You've seen what happens. You've seen the way others are treated ... I know how you feel, but go home, and go home in peace." Shortly after 6 pm, Capitol police secured the building.

While this is a brief summary of the events that occurred before and on January 6^th, the provide a useful account of political heresy (speech against the government) and question what speech can serve as incitement. For this assignment I want you to read the material related to the Nwanguma case and the Supreme Court opinion in Brandenburg. After you have read all this material, I want you to address four specific questions:

First, under what circumstances did the Supreme Court say that speech could constitutionally be restricted in Brandenburg v. Ohio? State and explain the Brandenburg test for incitement.

Second, apply that test to Mr. Trump's January 6th speech and describe for me both the best argument that can be made as to why Mr. Trump's speech meets the test for incitement and the best argument that can be made as to why Mr. Trump's speech does not meet the test for incitement.

Third, I want you to tell me which side in this debate is more persuasive. That is, I want you to tell me whether Mr. Trump's speech meets the test for incitement or does not meet the test for incitementand why, or why not.

Finally, I want you to step back and think about the Brandenburg test for incitement. What is the best means available for the government to handle speech that attacks the legitimacy of the government and the foundational democratic norms (such as free and fair elections)?

Question 2 The owner of Masterpiece Cakeshop in Colorado, Mr. Phillips considers himself a "cake artist" and a sincere Christian. His "calling" as a cake artist inspired him to produce custom-made wedding cakes of great beauty and complexity; his calling as a Christian (as he understands Christ's teachings) compelled him to refuse to create custom-made wedding cakes that would celebrate same sex marriage. Unfortunately for Mr. Phillips, the people of the state of Colorado, acting through their elected representatives, told him that he must either create custom-made wedding cakes for all individuals who can be legally married in America, or cease to create custom-made wedding cakes for anyone, thus effectively crippling his business and preventing him from supporting his family in the way he knows best.

Of course, it could well be said that the choice Mr. Phillips faced is a choice faced by any individual living in a jurisdiction that has anti-discrimination laws with which the individual happens to disagree. Presumably, a baker in America who sincerely believed that interracial marriage was immoral, and who refused to create wedding cakes celebrating that type of marriage, would face the exact same choice faced by Mr. Phillips.

In June of 2018, the Supreme Court weighed in on the choice faced by Mr. Phillips when it decided the Masterpiece Cakeshop v. Colorado Civil Rights Commission case. While the Supreme Court's opinion resolved the issue in favor of Mr. Phillips it did so not based on free speech but that he was discriminated against by the Colorado Civil Rights Commission (CCRC). The opinion by former Justice Anthony Kennedy argues that the members of the CCRC acted with animus toward Mr. Phillips' religion when they made their decision. This leads me to ask: if a different Colorado Civil Rights Commission, made up of a wholly different set of commissioners, were also to decide that Mr. Phillips must create custom-made wedding cakes for same sex couples, but were to come to that decision without in any way evidencing animus toward any religion whatsoever, would that decision be valid?

While the Supreme Court did not use Masterpiece Cake to answer the question of whether artistic expression through cake making, or flower arrangement, is considered "speech" under the First Amendment, there are other cases working through the federal judiciary that address this issue. At some point in time, the Supreme Court will answer whether a business may refuse to offer its services to its customers because of the sincerely held religious beliefs of the owners. This issue underscores a conflict between freedom of speech and its associated right of the freedom not to speak against anti-discrimination laws. Further, the Supreme Court must consider whether business practices that involve some artistic expression, even if they are commissioned acts of expression, should be considered speech? In a wedding and reception there are many business practices that contain artistic elements, from cake baking to floral arranging to hair styling to dinner making. Are these commissioned practices speech?

This discussion board question asks you to consider the 2018 Masterpiece Cakeshop v. Colorado Civil Rights Commission case. For this question, I want you to focus on Justice Clarence Thomas's concurrence in the case. Of the five separate opinions in the case, Justice Thomas' is the one that most clearly and forcefully engages the free speech issues involved in this dispute. The other opinions focus more on the religious aspects, and hence the "free exercise" issues, involved in this dispute.

Justice Thomas argues that it is well settled that the First Amendment gives you the right to speakand to refrain from speaking; the right to express yourselfand to refrain from expressing yourself. Justice Thomas also claims that it is well settled that if the government wishes to pass a law that directly prevents you from expressing yourself or directly compels you to express yourself, the government must demonstrate that the law in question withstands "strict scrutiny," meaning that there is a compelling state interest in having the law, and that that interest cannot be met in any other way.

Referring specifically to Mr. Phillips' refusal to create a custom-made wedding cake for a same sex couple, Justice Thomas writes, "Because Phillips' conduct (as described by the Colorado Court of Appeals) was expressive, Colorado's public-accommodations law cannot penalize it unless the law withstands strict scrutiny." And then Justice Thomas provides the following analysis, which I want you to consider very carefully. He writes, "Although this Court sometimes reviews regulations of expressive conduct under the more lenient test articulated in O'Brien, that test does not apply unless the government would have punished the conduct regardless of its expressive component. See, e.g., Barnes, 501 U. S., at 566-572 (applying O'Brien to evaluate the application of a general nudity ban to nude dancing); Clark, 468 U. S., at 293 (applying O'Brien to evaluate the application of a general camping ban to a demonstration in the park). Here, however, Colorado would not be punishing Phillips if he refused to create any custom wedding cakes; it is punishing him because he refuses to create custom wedding cakes that express approval of same-sex marriage."

Thinking specifically about the passage I have just quoted; I would like you to answer the following questions:

First, what, specifically, is the O'Brien Test to which Justice Thomas is referring? I want you to state and explain the four prongs of the O'Brien Test.

Second, which prong or prongs of the O'Brien Test does Justice Thomas appear to believe were incorrectly applied by Colorado in this case. In other words, in Justice Thomas' mind, what prong or prongs of the O'Brien Test, when correctly applied, distinguish Mr. Phillips' case from the case of Barnes v. Glen Theatre, Inc. or Clark v. Community for Creative Nonviolence?

Third, do you agree or disagree with Justice Thomas' analysis on this point, and why? In your opinion, should Mr. Phillips be required to bake custom-made wedding cakes for same-sex couples if he makes them for opposite-sex couples? What is your reasoning to support your position?