TJ Gets to Keep His Fig Leaf

Huzzah, hooray, the Vermont Supreme Court has upheld the state’s ban on high-capacity firearm magazines. It’s a nice little victory for a law that will mainly be used to add another charge to an offender’s charging document.

Because hey, nobody’s going to be out there doing primary enforcement of this thing. It’ll be enforced after the fact, when someone has been arrested for some other offense.

More importantly for Vermont’s top legal eagle, the court has allowed Attorney General T.J. Donovan to press his case against notorious asshole white supremacist Max Misch.

For those with short memories, Donovan filed the firearms charge against Misch after declining to prosecute Misch for hate crimes — particularly his open harassment of former state representative Kiah Morris, who left the Legislature because she was targeted by haters.

His decision not to pursue hate crime charges triggered a backlash from those who thought Misch deserved some kind of punishment, and that Morris deserved some kind of recourse in the law. After all, the police barely lifted a finger* to investigate her complaints of harassment. Ditto the Bennington County State’s Attorney. Donovan’s decision not to prosecute Misch meant that Morris got absolutely zero protection from the criminal justice system.

*In fact, Police Chief Paul Doucette’s biggest issue with the case was that “it is damaging the reputation of the Town of Bennington, the Bennington Police Department and myself personally.” He has also accused Morris of profiting financially off her claims. Nice guy.

Donovan found an escape hatch in the high-capacity magazine law. Misch became the first — and, I believe, only — person charged with violating that law. He appealed the case on constitutional grounds, which led to Friday’s Vermont Supreme Court ruling.

The decision allows Donovan to prosecute Misch. That’s nice, but kind of beside the point. Which is, when a Vermonter is harassed or threatened on the basis of race, do they have any recourse in the law? Donovan’s answer, at least for Vermonters in the public arena, is “No.”

“The court tells us that where speech involves public officials or manners of public concern the First Amendment tolerates a great deal of speech that is hateful and offensive.”

That’s a nice argument on the legal niceties, but it leaves BIPOCs, women, or any other public figure with no protection against a threat of bodily harm or even murder.

This isn’t an abstract concern. Morris is not the only person who has resigned from public office or left the state entirely because of threats. Donovan’s inaction enables Misch and his ilk to get exactly what they want — to drive out the people they hate.

When speaking about racial harassment and hate speech, Gov. Phil Scott has said “This is not, and cannot be, who we are.” Well, I’m sorry to break it to you, governor, but it is definitely who some of us are. And if the state holds itself powerless to stop the haters, it is complicit in allowing the haters to achieve their goals.

At minimum, Donovan should have done one of two things. First, if he thinks the law is inadequate to protecting Kiah Morris, he should advocate for a rewrite of the law. Second, prosecute the case for moral reasons even if you fear you might lose.

I haven’t heard Donovan advocate changes to the law. He refused to file hate-crime charges for fear he would lose. So he resorted to the gun charge as a way to prosecute Misch for something.

So congratulations to Donovan for winning the ability to keep his legal fig leaf. It doesn’t solve the fundamental problem: Do BIPOCs or women or those with disabilities or [insert outsider category here] have the right to enter the public arena without being subject to harassment and threat?

The VSC decision does nothing to resolve that issue.


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