Ohio, in which the Supreme Court held that the freedom of speech does not permit the government 'to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action,' it mangles it.

Though the court cites the highly speech-protective test from Brandenburg v. The most astonishing part is the court's conclusion that the statement is not protected by the speech clause of the First Amendment because it is plausible to think Trump was inciting a riot. A Kentucky federal district judge ruled that the case against Trump could proceed because 'Get 'em out of here' could reasonably be interpreted as an exhortation to attack the protesters. Several of these protesters were subsequently pushed and struck by others in the crowd. In one recent deformation, Trump was sued for incitement to riot and assault and battery when, at a campaign rally before he became president, he said 'Get 'em out of here' in response to protesters in the audience. But Trump's presidency may be even worse, because too many judges now feel called to 'resist' Trump and all his works-no matter the cost to the law's authority and to the integrity of the judicial role. Those who try to police the relentlessly transformational projects of constitutional progressives had much to dread from the Obama administration, an inveterate ally of the legal left that did what it could to graft the aspirations of progressives onto the Constitution. And just as fake news augurs the end of authoritative reporting, fake law portends the diminution of law's legitimacy and the warping of judges' self-understanding of their constitutional role. Just as fake news spreads ideologically motivated misinformation with a newsy veneer, fake law brings us judicial posturing, virtue signaling, and opinionating masquerading as jurisprudence. The result: Legal tests concerning the freedoms of speech and religion that in some cases were already highly dubious are being further deformed and twisted.

The perennial impulse of judges to manipulate the law to achieve morally and politically desirable ends has only been exacerbated by the felt necessity to 'resist' Trump. It is being contorted to enable judges to protest Donald Trump's presidency. Something ugly is happening to the First Amendment.

Fake law book