The Standard for 'Vicious' Speech Trump Laid Out After Kirk's Murder Would Implicate Trump Himself
Freedom of speech cannot reliably protect conservatives unless it also protects people they despise.
In a video released on Wednesday night, President Donald Trump said "radical left" rhetoric "is directly responsible for the terrorism that we're seeing in our country today," including this week's assassination of conservative activist Charlie Kirk at a college in Utah, and "it must stop right now." Trump vowed that "my administration will find each and every one of those who contributed to this atrocity and to other political violence, including the organizations that fund it and support it, as well as those who go after our judges, law enforcement officials, and everyone else who brings order to our country."
Trump also expressed devotion to "the American values for which Charlie Kirk lived and died," including "free speech." Yet that value seems inconsistent with Trump's claim that hateful rhetoric "directly" causes violence and his promise to "find" anyone who "contribute[s]" to that problem, apparently including "radical left" people who make inflammatory statements about their political opponents. As Trump put it on Fox News this morning, "The radicals on the left are the problem, and they're vicious and they're horrible and they're politically savvy."
The solution that Trump is contemplating seems to go beyond urging self-restraint. The Trump administration is developing a "comprehensive plan on violence in America," including "ways that you can address" what "can only be called hate groups," which "may breed this kind of behavior," White House Chief of Staff Susie Wiles said on Thursday. "It will not be easy. There's layer upon layer upon layer, and some of this hate-filled rhetoric is multigenerational, but you've got to start somewhere."
Like Trump, Wiles noted "the importance of free speech." But it is impossible to reconcile that principle with any government plan that entails targeting "hate groups" because they are "vicious" and "horrible" or because they engage in "hate-filled rhetoric."
What sort of rhetoric does Trump have in mind? "It's long past time for all Americans and the media to confront the fact that violence and murder are the tragic consequence of demonizing those with whom you disagree," he said in the video. "Day after day, year after year, in the most hateful and despicable way possible for years, those on the radical left have compared wonderful Americans like Charlie to Nazis and the world's worst mass murderers and criminals."
Such rhetoric is indeed "hateful" and "despicable," but it is also constitutionally protected. It is hard to imagine how the government, consistent with the First Amendment, could try to suppress the speech that Wiles says "may breed" political violence.
This is not to say there is no connection between the sort of demonization that Trump describes and appalling crimes such as Kirk's murder. Spencer Cox, Utah's Republican governor, says Tyler Robinson, the 22-year-old man police have identified as Kirk's killer, inscribed his rifle cartridges with messages such as "Hey fascist! Catch!" But while demonization may be a necessary condition for such violence, it is obviously not sufficient. If it were, we would see a lot more political murders.
First Amendment law recognizes that distinction between words and actions. Hyperbolic analogies like the ones that Trump cited clearly fall into the former category. And under the test established by the Supreme Court's 1969 ruling in Brandenburg v. Ohio, even advocacy of illegal conduct is protected by the First Amendment unless it is both "directed" at inciting "imminent lawless action" and "likely" to have that effect. Comparing your political opponents to Nazis, however "hateful" and "despicable" that may be, plainly does not meet that test.
Trump himself has relied on the Brandenburg test in arguing that he should not be held civilly liable for his role in provoking the 2021 riot at the U.S. Capitol. He insisted that he did not intend to cause a riot, noting that he never explicitly advocated anything more extreme than peaceful protest. Yet his pre-riot speech, which was full of invective against the "radical-left Democrats" who supposedly had rigged an election and dark warnings about what would happen if an alleged usurper were allowed to take office, easily meets the standard that Trump applies when he says anti-conservative rhetoric is "directly responsible" for "terrorism."
So does the demonizing rhetoric that Trump routinely deploys against people who irk him. As he tells it, his political opponents are not merely wrong. They are "sick, sinister, and evil people" who are "trying to destroy our country" because they "hate our country." They are "communists," "Marxists," "fascists," "radical left lunatics," "sick people," and "vermin." They are "the enemy from within."
Although Trump condemns "those who go after our judges," he reflexively tars judges who rule against him as corrupt actors who deserve to be impeached because they are perverting the law in service of an extreme ideological agenda. When a judge disagrees with Trump about statutory or constitutional interpretation, according to the president, he must be a "Radical Left Lunatic of a Judge, a troublemaker and agitator" bent on obstructing Trump's agenda for political reasons.
One could plausibly argue that such rhetoric fosters attitudes that, at their most extreme, encourage violence against politicians and judges. But that would not make Trump "directly responsible" for such crimes. The only person "directly responsible" for political violence is the person who decides to commit it—a point that even the Brandenburg test obscures by gliding over the moral autonomy of listeners who choose to engage in "lawless action."
The point is not that Trump is a hypocrite, although he clearly is. The point is that the freedom of speech he claims to value cannot protect him unless it also protects people he despises.
