Did Duke Law Abandon the 1st Amendment?

So, I'm between watching episodes of Delhi Crime and I start perusing the web to see what is going on and checked in on Scott's ongoing fight against all things found in the idiocy of youth and inexperience. There, I found out that the 1st Amendment Clinic at Duke Law has motioned a district criminal court in Texas for leave to file an amicus brief in support of the prosecution *GASP* in a case called Texas v. Rivello (as well as including their brief with the motion; sneaky that). As best I can tell Rivello is charged with felony "aggravated assault with a deadly weapon, with a hate-crime enhancement" for sending a flashing picture of the words "YOU DESERVE A SEIZURE FOR YOUR POSTS" to a journalist he knew suffered from epilepsy and triggering a seizure.

My first reaction is "Why do we need the brief?" It's clear what the prosecutor's argument is going to be. Expressing the words is protected by the 1st Amendment. Making them flash in the knowledge that they were going to someone who could be harmed by that flashing is an act - not speech. Just as clearly, the defense is going to argue the flashing is expressive speech, part of the message, and protected. TAH-DAH! If that argument didn't occur to you as you read through the first paragraph maybe you should consider a legal specialty other than crimlaw. Whether you're a prosecutor trying to put together your best argument or a defense attorney trying to anticipate the prosecutor's theory of the case, that's so basic it should be the first thing that comes to mind.

So, I turned to the unsolicited brief from Duke's 1st Amendment Clinic certain that it must have in depth, incredibly compelling reasoning mixed in with citations to Blackstone, the Great Charter, and the Code of Hammurabi. After all, if it doesn't what's the point?

Unfortunately, it doesn't. The first section of the brief is a well reasoned argument against the flashing being expressive speech. However, it's not breaking any new ground. All it really does is provide some citations for an argument we should all be able to make. It might prove useful to the prosecution if there is a conviction and an appeal is noted.

Then we get into the second section of the brief and it's disturbing. The 1st Amendment Clinic starts arguing the very, very dangerous exceptions that have crept into free speech doctrine over the years AND IT ARGUES IN FAVOR OF THEM.

Let me be clear, many of these exceptions exist for valid reasons. However, they are of a kind that they should be watched, controlled, and kept as limited a humanly possible. They are the kind of things that you set up 1st Amendment Clinics to act as watchdogs against. Prosecutors and Attorney Generals should argue they apply in particular cases. Defense attorneys should almost always argue against their application. A 1st Amendment Clinic should watch and intervene when it believes a line has been crossed or even might be crossed; it may have to pass on many because of lack of resources and them falling too squarely within accepted doctrine, but it should never argue in favor of something like the "True Threat" exception (allowing speech to be punished even though it has not blossomed into a threat of immediate physical harm). I should. As a prosecutor, it's my job to go after those bleeping idiots who burnt a cross on their own farm across the highway from a farm owned by African-Americans. I'm comfortable with that. Those idiots knew what they were doing and deserve what they get. Anyone working in a 1st Amendment Clinic should not be comfortable with that in the least.

Yes, I know the people at the clinic don't like the putative speech here. However, I'd ask them to consider the saying I used to have across the top of this page when I was still a defense attorney:

If I choose to defend only the righteous,
When the righteous are accused,
What tools shall I have to defend them?

Remember, every inch given up to get "them" is an inch you've lost when you become "them." If you can't defend the act of someone you don't like, or at the very least stand aside instead of arguing against an expansive reading of the 1st Amendment guarantee of free speech, what are you doing in a 1st Amendment Clinic?