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Recently I wrote that February 25, 2022 could be a very hard day for VDARE.com, and it was: the Supreme Court of the United States declined to hear our petitions for certiorari in VDARE Foundation vs. City Of Colorado Springs and also in our second case Brimelow vs. New York Times.
I discussed the issues involved here:
SCOTUS’ implicit answers:
Note that I say “implicit.” SCOTUS did not actually rule in these cases. It just cravenly evaded them.
The New York Times rejection is deeply disillusioning to us at VDARE.com, but is perhaps not, in the end, in vain. “The Supreme Court is going to revisit SULLIVAN,” a noted First Amendment lawyer told me about our New York Times case. “But not for you.” (So much for Equality Before the Law).
SULLIVAN—the disastrous Civil Rights Era SCOTUS decision that distorted the law to protect black activists and broke with other Common Law jurisdictions like the U.S. and Canada to invent the idea that falsehood in itself was not libelous—is clearly doomed. The recent extraordinary behavior of Clinton-appointee Judge Jed Rakoff, in effect directing the jury in Sarah Palin’s libel case against the New York Times, was widely interpreted as a desperate effort to keep the License To Lie alive [Sarah Palin’s defamation case against the New York Times could spell trouble for the First Amendment on appeal, by Richard Labunski, Baltimore Sun, March 4, 2022]. (NOTE: When the US Regime Media says “First Amendment,” it means its License To Lie. Free Speech is doing just fine in other Common Law Jurisdictions without SULLIVAN).
In fact, we established our key point when Judge Katherine Polk Failla (Southern District of New York), acknowledged that calling me an “open white nationalist” was a factual point and thus “actionable.” (I have repeatedly said that I am a civic nationalist.) But she also claimed that the New York Times had made me whole with its subsequent Stealth Edit that removed the word “open.” Obviously this is absurd, even apart from the fact that it contradicts the New York Times’ published ethical standards—which, apparently, Judge Katherine Polk Failla decided not to recognize.
I am assured by VDARE.com’s eminent lawyer friends—who are numerous, but who wish to remain anonymous for reasons that reflect very badly on the state of American debate, especially within the legal profession [The Takeover of America's Legal System, by Aaron Sibarium, bariweiss.substack.com, March 21, 2022], that the cumulative effect of petitions for certiorari to SCOTUS on a key issue can in the end break the dam.
See earlier Brimelow vs. New York Times coverage:
So there’s that.
But the implications of Colorado Springs are immediately much more serious. As a reminder, our original attorney was so confident about the Civil Rights aspects of this case that he took the case on contingency.
What SCOTUS’ failure to take up Colorado Springs implies:
For example: The State of Tennessee could now refuse to provide American Renaissance’s Montgomery Bell State Park conferences with any police protection. (Its previous attempt to stick AMREN with protection costs was rejected by a federal judge.)
How quickly the devastating implications of Colorado Springs will be felt is hard to say. It partly depends on how aggressive Woke local governments get, e.g., if the State of Tennessee (which is actually GOP-controlled, although it’s sure hard to tell) really wants to renew its attempt to suppress American Renaissance.
Additionally, Colorado Springs could possibly impact Jason Kessler’s heroic suit against the City of Charlottesville for failing to protect his 2017 Unite The Right rally, which, disgracefully, he has already had to appeal to the Fourth Circuit. And here’s another case raising similar issues: EXCLUSIVE: Conservative activists in Portland announce intention to sue city, mayor and left-wing district attorney in tort claim, by Andy Ngo and Hannah Nightingale, The Post Millennial, March 6, 2022.
Needless to say, this is completely contrary to the courts’ traditional role in defending unpopular speech (not that our views are actually unpopular—Donald J. Trump, whose August 15, 2015 immigration statement encapsulated VDARE.com’s long-held policy prescriptions, won El Paso County, which contains Colorado Springs, 56%-36% in 2016).
In the Anarcho-Tyranny that the U.S. is rapidly becoming, there will be many more such cases brought by Americans who are still under the impression that they enjoy liberty under law. And maybe SCOTUS will ultimately find the courage to take one up. But to achieve that level, these patriot plaintiffs will now have to fight through the specious judicial rulings in VDARE Foundation vs. City Of Colorado Springs.
Assuming, that is, that they can afford it. (See below.)
See earlier VDARE Foundation vs. Colorado Springs coverage:
Two paradoxical understandings of the Constitution were implied by SCOTUS’ two non-decisions:
It goes without saying that these decisions, these exercises of the “rule of law,” would not have been similarly resolved if our small website had been the perpetrator of the libel—or if Mayor Suthers’ retribution had been directed toward a “Civil Rights,” aka Black activist, organization.
I must say frankly that I am personally extremely bitter about this experience. Studying the decisions, I don’t think that these judges (with the heroic exception of the Tenth Circuit’s Harris Hartz, who dissented in Colorado Springs) made any serious attempt to grapple with our arguments—particularly SCOTUS, which cannot have spent even minutes on the two cases it was supposed to be conferencing about on February 25. The lower courts’ arguments shifted, especially in the case of Colorado Springs. But the common thread: a blind determination to protect the Powers-That-Be.
Like everyone with any sense, I thought FBI Director Christopher Wray’s claim that “white supremacy” was a terrorist threat [FBI director says white supremacy is a ‘persistent, pervasive threat’ to the US, by Marshall Cohen, CNN, April 4, 2019]—made before the Summer of Floyd, which Wray scandalously failed to anticipate)—was ludicrous. If there were such “white supremacist” terrorists, I was fairly sure that I, and/or people I’m acquainted with, would know about them.
But I now have the feeling that the Deep State, including the Kritarchy, is indeed in a state of hysteria about white dissidence. Anything that can in any way be Guilted By Association with it is not going to get Equal Justice.
Whites, in other words, do not have rights.
I might also say that the Federalist Society/ Trump strategy of getting “conservative” judges on the courts does not seem to be working, at least for us. We faced Trump appointees, not least at SCOTUS. On our issues, they seemed no different than Democrat appointees.
Recently, I asked one of the eminent lawyers I know who have been quietly urging us to fight Colorado Springs what legislative redress there would be if SCOTUS allowed Colorado Springs to stand.
He said: “I guess we’d have to pass the First Amendment again and add WE MEAN IT THIS TIME!”
So what can Americans do if neither litigation nor legislation is the answer to what can only be described as emerging Woke Totalitarianism?
Maybe, as Editor of VDARE.com, I was wrong, as so many cynics told me, to invest so much of VDARE.com’s resources in the quest for justice in these cases. (Of course, it cost our opponents even more to defend themselves—but they can afford it.).
Nevertheless, especially in the case of Colorado Springs, I just don’t see what alternative we had.
Either the legal system works, or it doesn’t. Either way, we have to know.
We continue to litigate other VDARE.com cases, at least one of which we are quite hopeful about. I will write about these soon.
And we continue to be profoundly grateful for your help.