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can someone post this pdf?

Forwarded from
Jim Watkins
8kun-Jan-6-Committee Response.pdf
259.6 KB
The 8kun.top response to the January 6 committee Please share this:
No confidentiality designations were attached to the congressional request
and we are free to share what we’d like with the public (who should know
what’s going on in their government)

~~~~~~~~~~~~~~~

OK, I’ll give it an imperfect try… here you go…

September 7, 2021
One Hundred Seventeenth Congress
Select Committee to Investigate the January 6th Attack on the United
States Capitol
U.S. House of Representatives Washington, D.C. 20515
Re: Select Committee 8kun Inquiry
Chairman Thompson and Members of the Committee:
We write in response to your letter dated August 26, 2021 asking 8kun to
produce a broad range of information related to “[m]isinformation,
disinformation, and malinformation related to the 2020 election.” Without
doubt, it is the duty of all citizens to cooperate with congressional efforts
to obtain relevant facts needed for legislation. Equally so, it is incumbent
upon Congress to respect the constitutional rights of the witnesses it calls
upon. To be more direct, the “Bill of Rights is applicable to investigations
as to all forms of governmental action.”

1 8kun will respond to appropriate requests issued by this Committee.
But as the Supreme Court reminded Congress just last year, congressional
investigatory and subpoena requests are valid only when they are “related
to, and in furtherance of, a legitimate task of Congress and must serve a
valid legislative purpose.”

2 Because of constitutional and pertinence concerns, we seek to narrow
and better identify the information this Committee would like produced.
1. Introductory Constitutional Principles
Congress has sporadically wrestled with contentious issues of the day by
means of investigatory committees. Unfortunately, Congress also has a
history of abusing that power through targeting disfavored political actors
and associations.

3 This is forbidden by the First Amendment and the Due Process Clause
of the Fifth Amendment to the Constitution.

4 a. New Deal and “Un-American Activity” Analogues
The D.C. Circuit Court of Appeals and Supreme Court struck down
congressional investigatory attempts to chill political speech and
association in U.S. v. Rumely.
There, the New Deal Congress was
1 Watkins v. U.S. (“Watkins I”), 354 U.S. 178, 197 (1957).
2 Trump v. Mazars USA, LLP, 140 S.Ct. 2019, 2031 (2020).
3 Barsky v. U.S., 167 F.2d 241, 263 (D.C. Cir. 1948) n.8 (“‘Hollywood Fires
10 Cited in Contempt. Film Heads Rule They Must Swear Theyre Not
Reds To Be Rehired’. Washington Post, Nov. 26, 1947, . 1, col. 4.”).

4 See Rumely v. U.S., 197 F.2d 166, 173 (D.C. Cir. 1952) (Congress
“represents the people, and its power comes from the people. It is not a
source or a generator of power; it is a recipient and user of power”);
see also U.S. v. Rumely, 345 U.S. 41, 46 (1953).
1629 K St NW Ste. 300 Washington, DC 20006 www.barrklein.com
irritated with the conservative agitator Dr. Edward Rumely and the
Committee for Constitutional Government (“CCG”). They organized
business opposition to New Deal legislation, perhaps too effectively.

5 The House Committee on Lobbying Activity demanded the names of
anyone who purchased books, pamphlets, or other literature from CCG.

6 The D.C. Circuit found this inquiry to be outside the power of Congress.

7 The Court concluded the House Committee could never be
constitutionally empowered to generally investigate all aspects of lobbying.
It could investigate particular abuses, particular people, particular records,
or particular criminal endeavors. But the First Amendment would forbid
Congress from examining, publicizing, or reporting the “names and
addresses of purchasers of books, pamphlets and periodicals” because
that would serve as a “realistic interference with the publication and sale
of those writings.”

8 The investigation into Rumely and CCG suffered from another malady:
the congressional mandate to investigate was flawed. Congressional
desires to examine attempts to influence, encourage, promote, or retard
legislation or to influence public opinion are simply void under the First
Amendment.

9 Courts have sometimes upheld limited inquiries where authorizing
resolutions are sharply focused about threats to overthrow the government.
But the congressional power to investigate even serious threats to
overthrow the government is not limitless. In Watkins I, Congress stressed
the urgency of its need to root out domestic extremists and to “be informed
of efforts to overthrow the Government by force and violence so that
adequate legislative safeguards can be erected.”

10 But the Supreme Court cautioned that broad congressional
authorizations for investigations could produce disastrous results:
From this core, however, the Committee can radiate outward infinitely to
any topic thought to be related in some way to armed insurrection. The
outer reaches of this domain are known only by the content of ‘un-
American activities.’ Remoteness of subject can be aggravated by a probe
for a depth of detail even farther removed from any basis of legislative
action. A third dimension is added when the investigators turn their
attention to the past to collect minutiae on remote topics, on the hypothesis
that the past may reflect upon the present.

11 Rumely would not disclose donors after being served with a
congressional subpoena asking him to do so. See 96 CONG. REC. 13882
(Aug. 30, 1950) (statement of Rep. Buchanan); see also 95 CONG. REC.
6431 (May 18, 1949) (statement of Rep. Sabath) (“[M]any more millions
have been spent on the part of many corporations and businesses who are
endeavoring to . . . stop legislation which they are opposed to . . . . I have
attacked these professional lobbyists for years. . . .This committee will
recommend ‘teeth’ that can properly be enacted into law thereby
eliminating these abuses”).

12 Particularly pernicious for the House Committee were sales of “The
Road Ahead,” “Labor Monopolies and Freedom,” “Compulsory Medical
Care and the Welfare State,” and the “Constitution of the United States.”
Rumely, 197 F.2d at 169–70.
7 Id. at 173.
8 Id. at 174.
9 Id. at 173–74.
10 See Watkins, 354 U.S. at 204; compare with H.Res. 282, 117th Cong.,
1st Sess. (legislative purpose to examine “facts and circumstances
surrounding the domestic terrorist attack on the Capitol and targeted
violence and domestic terrorism relevant to such terrorist attack”).
11 Watkins, 354 U.S. at 204. 2

In short, congressional resolutions setting few boundaries on nebulous
topics violate constitutional norms.12

b. Constitutional Limits at Hand: Watkins II13
Forcing raucous businessmen of the 1930s or unorthodox platforms of the
2020s to answer questions about the most nebulous of topics—the
underlying causes of political violence—is an unworkable congressional
command. Worse yet, prying into intimate ideologies and thoughts is a
serious censorial chokehold. As courts have realized, the requirement that
one reveal purchasers of books, pamphlets, or papers marks the start of a
surveillance state. And just as courts would not embrace a surveillance
state arising out of congressional investigations in the past, so too is this
approach inappropriate today.

Compelling online platforms to share information about users who posted
about efforts to “overturn, challenge, or otherwise interfere with the 2020
election or certification of electoral college results” chills the First
Amendment rights of millions of Americans who were concerned about
electoral integrity during the 2020 election. They have every bit as much a
First Amendment right to peacefully gather with others, exchange ideas,
and let their discontent be known by public officials as Rumely and CCG
did.

14 Demanding that platforms produce mal-, mis-, or disinformation—
terms that are undefined but that are usually euphemisms for speech the
powers that be disagree with—works an equally pernicious chill against
political speech in America. Once government is free to demand the names
of users espousing unpopular, unorthodox ideas, free speech and free
press rights on the internet disappear.

Like the problematic scope of inquiry in Watkins I, the present inquiries at
hand here in “Watkins II” are just as troubling. Where Congress sets out to
investigate nebulous topics like “subversion and subversive propaganda,”
unlimited “influencing factors” behind the January 6 attack, or how
misogyny and racism might impact political violence, constitutional
problems grow exponentially.

15 But the scope of this authorization is beyond Congress’s power due to
its invasion into protected First Amendment rights and its failure to offer
pertinent queries related to its otherwise legitimate concern—the spread of
real political violence. Much like Rumely, particular queries focusing on
12 See Watkins, 354 U.S. at 214 (congressional subcommittee related to
rooting out risk of Communist overthrow of government could not rest its
basis for information on the need to learn about “subversion and subversive
propaganda” because such a request was overbroad and indefinite);
compare with H.Res. 282, 117th Cong., 1st Sess. (racism, misogyny, and
Islamophobia may be drivers for domestic violence extremism; listed
congressional purpose includes an examination of “influencing factors that
fomented such an attack on American representative democracy while
engaged in a constitutional process”).

13 “Watkins II” is the authors’ nomenclature for the impending dispute over
the present congressional inquiry into Mr. Watkins and 8kun.

14 The National Park Service authorized a gathering of up to 30,000
people for the Washington, DC pro-Trump rally. Stephanie Dube Dwilson,
How Many Were at the MAGA Trump March & Protest in DC? Crowd Size
Photos, HEAVY, Jan. 6, 2021, available at https://heavy.com/news/maga-
march-trump- dc-rally-crowd-photos/ It is currently unknown what small
percentage of the peaceful rally attendees committed acts of political
violence at the Capitol.
15 U.S. v. Peck, 154 F.Supp. 603, 608–09 (D.D.C. 1957). 3

particular people, particular records, or particular criminal acts may be
examined. Fishing expeditions into the closely-held thoughts and beliefs of
the American people rest beyond Congress’s prying eyes. The
controversies surrounding the 2020 election, well settled within the Beltway,
are hardly settled for many Americans. Roughly one-third of Americans—
almost 110 million people—believe that President Biden’s 2020 victory was
the result of widespread voter fraud.

16 The First Amendment encourages citizens to debate and talk about
issues of self-government—without fear of the government collecting and
pouring over their communications. As Congress continues in this direction,
some citizens will fear to espouse, and some will fear to read, messages
that those in power dislike. The million-fold eyes of Argus Panoptes
become a reality by congressional fiat.

17 The resulting shadow the government will cast over online discussion
that does not conform to the dominant party’s narrative should frighten
every American.

2. Past Compliance with the Committee on Homeland Security
Mr. Watkins, as a representative of 8kun (formerly 8chan) freely appeared
before the House Committee on Homeland Security in September 2019 to
address that committee’s concerns over the proliferation of online extremist
content. In doing so, 8kun produced relevant documents and Mr. Watkins
answered relevant inquiries about the site’s operations. We attach the
submitted “Congressional Primer on 8chan” for your reference as
ADDENDUM A. Notably, 8kun included more than fifty pages of voluntary
interactions with law enforcement about particular criminal investigations.
Where requests are focused and particular and do not run afoul of
constitutional norms, 8kun is enthusiastic to aid Congress and law
enforcement in their operations. We hope we may be equally helpful here.

3. Clarification of Existing Requests
It is Mr. Watkins’s desire that we continue 8kun’s practice of responding to
lawfully issued requests and to provide as much respectful cooperation with
your committee’s investigation as the First Amendment allows. However,
the requests contained in your form letter dated August 26, 2021 are an
unworkable starting point for cooperation. For example, item 1 requests
production of “All . . . data . . . regarding your platform . . . .” Even if this
sentence is read in conjunction with the items described in items “i.”
through “iv.,” this request is so broad as to render compliance impossible.
Other form requests, such as requests for “internal or external reviews and
reports” regarding 8kun’s “algorithms” seem misdirected. 8kun is a small
organization and a relatively simple website. There are no “internal or
external reviews” nor are there website “algorithms.” This is but an entrée
of errors— the requests, as written, need substantial clarification and focus
for 8kun to attempt cooperation.

Please contact Mr. McDonald at your convenience to discuss your requests
and determine if there is any specific information that the Committee is
constitutionally empowered to seek and that Mr. Watkins is capable of
producing. Alternatively, 8kun may be accessed through the internet at
xxxxxxxxxx

16 Max Greenwood, One-third of Americans believe Biden won because of
voter fraud: poll, THE HILL, June 21, 2021, available at
https://thehill.com/homenews/campaign/559402-one-third-of-americans-believe- biden-won-because-of-voter-fraud-poll

17 Argus Panoptes is a subject of Greek mythology and is a many-eyed
giant who kept subjects of his observation under close scrutiny. Mike
Greenberg, Argus: Hera’s Hundred-Eyed Guard, MYTHOLOGY SOURCE,
available at: https://mythologysource.com/argus-greek-giant/ 4

xxxxx. All of the information the Committee appears to seek is likely
available in an open manner for viewing on the website. Should any
substantive issues arise over related constitutional concerns, please
contact Mr. Barr directly.
Respectfully,
Benjamin Barr
BARR & KLEIN PLLC
444 N. Michigan Ave.
Ste. 1200
Chicago, IL 60611 Telephone: (202) 595-4671 ben@barrklein.com
Stephen R. Klein
BARR & KLEIN PLLC 1629 K St. NW
Ste. 300
Washington, DC 20006 Telephone: (202) 804-6676 steve@barrklein.com
Tony McDonald
The Law Offices of Tony McDonald 1501 Leander Dr., Ste. B2
Leander, Texas 78641
Telephone: (512) 923-6893 tony@tonymcdonald.com