The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A friend asked me whether Trump's speech yesterday could be punished as criminal incitement of the appalling Capitol riot.
I doubt it, at least as I read what Trump was saying. Under Brandenburg v. Ohio, even "advocacy of the use of force or of law violation" can't be punished unless it "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Saying things that foreseeably move some audience members to act illegally isn't enough. Speaking recklessly isn't enough. The Court was well aware that speech supporting many movements—left, right, or otherwise—that merely moves the majority to political action may also lead a minority of the movement to rioting or worse. It deliberately created a speech-protective test that was very hard to satisfy.
And that test of course applies equally to all speakers, politicians or otherwise. If an ordinary citizen said what Trump had said, it seems to me very hard to see how prosecutors can show beyond a reasonable doubt that he was intentionally promoting a riot (see, e.g., Hess v. Indiana), or even intentionally promoting trespassing. (Intentionally promoting trespassing might or might not lead to civil negligence liability for foreseeable injuries as a result of the trespassing, which is the issue in the Mckesson v. Doe litigation that the Court sent back to the Fifth Circuit recently. But again I doubt this can be found here.) I might be mistaken here, but that's my sense based on what I've seen.
In theory, statements that don't facially call for illegal conduct could be found to implicitly advocate it, and to be implicitly intended to be understood as calls for illegal conduct. One hears academics and even occasionally judges, for instance, point to Marc Antony's funeral speech for Caesar ("Brutus is an honourable man") in discussing such a posibility, but in practice this is very unlikely under modern incitement law. And such a specific intent to incite illegal conduct is especially hard to find where the speaker actually had a good deal to lose politically from his supporters' violence. (Members of Congress might be swayed by a fear of losing elections, but, for all their faults, I think they're quite unlikely to be swayed by rioters at the Capitol, and are indeed likely to be swayed against their positions.)
Nor should we want ordinary citizens to be criminally punished for such speech. Again, a great deal of fiery rhetoric aimed at promoting peaceful political pressure—whether related to racial equality, abortion, police brutality, gun rights, environmentalism, animal rights, labor, or a vast range of other topics—can lead some people to act violently. Yet Brandenburg was quite right, I think, that such rhetoric needs to be protected, despite the violent action by some listeners that it might foreseeably cause. We certainly shouldn't let outrage against Trump allow the distortion of a constitutional rule that protects speakers generally.
The problem here is that it's Trump's job to prevent and stop rioting, especially rioting against federal institutions. He's supposed to prevent and stop such behavior even when it's promoted by total strangers to him. He has a special responsibility to prevent and stop such behavior by people who are on his side, since those are the ones whom he can most effectively try to calm even when they're already in a rioting mood.
He most certainly isn't supposed to say things—even constitutionally protected things—that are pretty likely to cause harms of the sort that we hired him to stop. The incitement test, which applies equally to all speakers, doesn't capture this factor, nor should it. This factor is all about the special responsibilities of government officials (Presidents, governors, mayors, police chiefs, legislators, and the like). Such officials are supposed to be politically savvy enough to know what's likely to produce (even contrary to their intentions) criminal conduct, and are supposed to organize their speech and action in a way that minimizes this, rather than making it especially likely.
Trump's failure was a failure not as a speaker, of the sort that strips speakers of First Amendment protection. It was a failure, a massive and unjustifiable failure, as a public servant.