Free Speech

Incitement and Ordinary Speakers; Duty and Political Leaders

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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.

NEXT: When Are We Going to Admit that Trump is Unfit to be President?

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    1. Impeachment seems unlikely because apparently both houses of Congress have now gone on vacation. Not exactly profiles in courage.

      1. Still, given how many Conspirators have blogged to say they support it (or at least in principle), I would have expected the Chief Conspirator to at least mention it at the end of a characteristically thoughtful post such as this one.

        1. Martinned: Impeachment is a political process, and rightly subject to a political calculus. Members of Congress, after all, are political leaders with their own duties to the public. They too need to calculate what will unnecessarily inflame people and what will calm them; what will set a good precedent and what will set a bad one; and, more broadly, what the costs and benefits of the process would be with 13 days left in Trump’s term. I’m not sure enough of those costs and benefits to opine in a helpful way on the subject.

    2. Just as soon as we impeach all the other DC politicians who encouraged and advocated violent riots in the last year.

    3. Seems pointless, except maybe as a way to humiliate the filthpig a bit more. Which is also seems a bit pointless, but I’m personally not a sadist.

      The proper response is to ignore the waste of skin, or express your disgust with him if you can’t, and move on.

      Quite simply, Don and any of his followers are beneath contempt. I will have no personal or knowing professional interactions with them; they obviously are untrustworthy lawbreakers.

  1. I wonder how many people saw the whole speech and how many saw clips selected by third parties for greatest pro- or anti-Trump effect.

    1. Do you mean the whole youtube video of him talking to the rioters. It’s watching whole clip that results in the greatest anti-Trump effect.

      1. If you’re anti-Trump to begin with, I suppose. If you’re pro-Trump it’s just his usual claims he was robbed, and a direction to peacefully protest.

        Youtube video? Hasn’t that been taken down, in the general deplatforming effort that got started yesterday?

        1. The biggest difference between 1984 and 2021 is that now we have computers to help airbrush inconvenient facts out of history.

    2. It was only one minute long. If anything, your comment indicates you haven’t watched it.

  2. If Mr. Trump organized an invasion of the Capital and attempt to take Congress hostage, even loosely, he can be held criminally liable. Such behavior is conduct, not speech.

    When the Godfather says the family would be better off if so-and-so were sleeping with the fishes, he is not offering an abstract opinion. He is issuing an order.

    Everything depends on context. Whether what Mr. Trump did here was issue orders has to be determined from the context. And if he did, his behavior is sedititious conspiracy, conduct, wholly unprotected by the First Amendment.

    1. You are just a Democrat. I felt the same about the Mueller investigation. Mueller and those lawyers were in insurrection in trying to overturn the 2016 election. They should have been arrested, tried and sentenced to 10 years at hard labor in federal prison.

      1. An investigation is not like storming the capitol. You should not need another adult to explain this to you.

          1. An investigation is worse if it’s done as a fishing expedition in an effort to derail a lawfully elected official, particularly if it’s started with a false premise (eg a made-up dossier used to justify spying on an opponent’s campaign, and later an investigation).

    2. My take is that he had no idea what was going to happen. None.

      Last time I was down to DC, there were guys with MP4s (I think) standing on the steps of all the Capitol Buildings. Polite — one gave me directions to the building I was trying to find — but they were carrying automatic weapons.

      Somebody was either woefully incompetent yesterday, or somebody gave a “stand down” order in hopes that things would go bad so as to make Trump look worse.

      Let’s start with the window washing gantry: who the f**k left it there?!? Who put up a flimsy temporary fence without officers patrolling it? Etc….

      Now maybe it was just a Clusterf**k because there are upwards of a dozen different police entities with jurisdiction over that building and you gotta have a single situation commander or things will go bad, quickly. If nothing else, it needs to be established that SOMEONE (i.e. USSS, FBI, Homeland Security — *someone*) has to be ultimately in charge and able to make decisions.

      But I don’t think that Trump had any idea that any of this was going to happen. He’s been in DC too long and doesn’t understand how pissed off Middle America is about this stolen election.

      1. Right. We don’t do pictures here but there are many places on the net where you see the “readiness” of the authorities on the capitol steps during BLM marches versus these riots.

        And even Joe Scarborough went apeshit on MSNBC over the obvious: the DC police bad-asses who were willing to take down people for crossing the street three-blocks away literally opened the doors to let the MAGAhats in.

    3. Trump didn’t issue orders. But in a country of 300 million, there are always enough hotheads on every side that can barely be restrained under the very best of circumstances. Trump surely knew that, and he knew that some of his supporters would be inspired to violence. I’m sure he knew that some of his supporters would do violence anyway – even if Trump had done the right thing and conceded the election on Dec 12 when Mitch McConnell did. And I think it is likely that there are some Trump supporters who will do violence on Jan 20 in ways that 10,000 troops can’t stop. Presidents do have a special responsibility to tone down the rhetoric – especially when it is clear their cause is lost.

  3. Hi, Eugene. What did you think of the invasion of Hong Kong’s Parliament by pro-democracy advocates? What is the difference?

    Do you condemn the excessive force used to martyr one of the freedom fighters, by shooting her in the face? Should that black lawyer representing all the victims of police shootings reach out to the family and get them $12 million from these Democrat thugs with badges?

    1. You mean other than the difference between trying to overthrow the government and trying to defend it?

      1. Both opposed the Chinese Communist Party and its agent, the Democrat Party.

      2. Martinnned, he can’t be reached. If he’s comparing the Democrats to the CCP, he’s like the people that consistently compare trump to Hitler. Beyond the pale and not likely to return.

    2. https://www.youtube.com/watch?v=YX95QSKBODo

      “Four Dead in DC” — mantra of my generation?

    3. You are asking someone to explain to you the difference between pro-democracy protesters and anti-democracy protesters.

      No explanation will help you.

  4. It’s pretty telling that you quote not even one word Trump said. (Though kudos for linking to it.) “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.” Whoa, that’s some serious incitement there!

    While it’s true that you could be charged with incitement without actually telling people to riot, I’m wondering if anybody could be plausibly charged with incitement for telling people not to.

    1. If your sympathy is with Trump or his mob, then you are a traitor, an enemy of the constitution.

      That is all.

      1. Yeah, yeah, I already picked up on that: ‘There are only people who agree with us, and inhuman enemies of humanity!’; That’s been the left’s mantra for years.

        1. I know I shouldn’t be shocked by my FB feed at this point, but the level of “Traitors!” / “Arrest them all!” / “Democracy in peril!” posts have been simply unbelievable. I mean…it’s not even the first time that a public legislative forum has been occupied in the US by protestors in the last 12 months.

          Not a defense at all. Both sides who do this suck. Blah blah. And occupying Congress is still a whole new level of stupid showboating that will do exactly the opposite of what the occupiers are looking to accomplish. Still…last I checked, they all got cleared out in a few hours. And the only bloodshed is on a state actor.

      2. Says the guy who supports the Russia Collusion Treason.

    2. He continued to repeat the exact same lies that motivated the rioters during that speech. This is like if, during the Benghazi attack, Hillary Clinton told the attackers “Yes, America really is the bane of the world and responsible for all of your problems, but it’s time to go home now. Love you!”

      1. “He continued to repeat the exact same lies that motivated the rioters during that speech.”

        They were the same ‘lies’ that motivated everybody there, and almost all of the people there were as peaceful as you could ask.

      2. I have yet to see a good analysis that shows that what President Trump has been saying is lies.

        Instead, everyone wanting to discuss them have been censored, have been labeled “disputed”, have been ignored in the Courts, and have been accused of lying and believing in conspiracy theories.

        With all the attempts to bury the election, and none to do serious investigations into any evidence, I can’t help but be convinced that this is true, using the reasonable “guilty mind” heuristic: if this election was 100% on the up-and-up, then what does everyone have to hide?

    3. Brett, pretty sure the law of incitement does not require the person accused to utter incitement every time he speaks. This may seem very unfair to you, but what if the law permits prosecutors to pick and choose among things Trump says, and charge him only with the ones which break the law?

      1. Yes, but it would nonetheless be nice to see at least one statement that breaks the law.

        We haven’t seen even that.

  5. “Trump’s job to prevent … rioting”

    What?

    We’ve had riots in just about every presidential term, Maybe not WH Harrison’s. If that’s part of his job, then we keep electing incompetents.

  6. Objective review of the Kent State shooting is that the Guard leadership screwed up — they had troops who had been out patrolling all day during a trucker’s strike, with loaded rifles (M-1s) because they likely would need them. Not only were they tired, but they were never told to unchamber the live rounds in their weapons.

    Four dead there, four dead yesterday — and I suspect that the other three aren’t exactly totally “natural causes.”

    Will these deaths crystallize a movement the way that Kent State did? And will Kamala Harris be held accountable for all the things she said in praise of BLM?

  7. I agree with all of this completely. Except that Prof Volokh omitted mention of the OrangeManBad clause of the Consitution, which allows prosecutions of bad people *who have the temerity to get themselves elected President* to be prosecuted.

  8. Question for the prof: Does context and the history of the speaker matter in your test for “incitement?”

    You look at the one Trump statement and yeah — what I get is a really stupid man trying to calm things down while still having things his way. At that moment. I genuinely believe he had no idea it would come to this.

    But Trump did not make this one statement. He has years-long history of cultivating extra-legal aggressiveness on the part of his supporters. He knows it excites them and makes them feel powerful so that’s why he does it.

    So in my view yes Trump is fully culpable in the DC riots. But would a court see it the same way?

    1. Orbital Mechanic…pragmatically speaking, there is not a court in the land that wants that ‘hot potato’ dropped in their lap. Were such a case to be brought, the court sit on the case, wait until January 21, and then dismiss the case as moot.

    2. ” He has years-long history of cultivating extra-legal aggressiveness on the part of his supporters.”

      Eh, I’m not really sure about that “extra” bit. Telling people to clock anybody they see throwing somebody at the stage? Security guards can get away with that.

    3. Question for the prof: Does context and the history of the speaker matter in your test for “incitement?”

      Of course context matters.

      If you give a speech to a Klan rally at which you rant for an hour about blacks as criminals destroying the country and the need to protect the purity of white women from them, and then you see a passing black and say, “Hey! There’s a right there! Peacefully show him what you think of him!” and then he’s lynched, you don’t get to (successfully) defend yourself by saying, “I said ‘peacefully.'”

      1. So we can prosecute Democrats for their inciting of riots against Republicans then. Yay!

        And not just Republicans, by the way — they’ve been inciting riots in cities for months now.

  9. Pelosi: “I Don’t Even Know Why There Aren’t Uprisings All Over The Country”

    It turns out that Speaker Pelosi could predict the future!

  10. VP-elect Kamala Harris, also predicting the future of protests:

    “They’re not gonna stop, and everyone beware, because they’re not gonna stop,” she added. “They’re not gonna stop before Election Day in November, and they’re not gonna stop after Election Day.”

    “Everyone should take note of that, on both levels, that they’re not going to let up — and they should not. And we should not,”

  11. Professor Volokh,

    The big issue here is Trump is literally just doing what Harris and Biden and Obama have been doing for months. Supporting the protests, but condemning the violence. And there is an apparent double standard here.

    This is Harris DURING the riots in Kenosha

    “”We also see pain, hurt, and destruction in the aftermath of yet another Black man shot by police. Jacob Blake was shot seven times in the back in broad daylight in front of his three young sons,” Harris said during her Thursday address. “People are rightfully angry and exhausted. And after the murders of Breonna and George and Ahmaud and so many others, it’s no wonder people are taking to the streets. And I support them.”

    You have the incoming Vice President of the United States openly supporting protestors who are then engaging in violence, burning people’s businesses and ability to make a living.

    And…crickets. Or support…. from everyone. And what does Trump so? He sees this, and he says “Well, I can support those who protest for me, as long as I condemn violence”. And why not?

    And that’s my question. Why not? What’s the difference?

    1. The main difference is that Trump isn’t sending bail money to the rioters yesterday while Harris and Biden’s campaign staff were sending bail money to the rioters over the summer.

      If they want to impeach and remove someone, then start with Harris.

  12. Really just out of interest – how strict is the “The incitement test, which applies equally to all speakers…” test in the US? If I say “Will no one rid me of this turbulent priest?” I can’t expect anyone to consider this as an implicit order, but if the same words are uttered by the King, the meaning changes from a mere rant to an implicit order that “should” be obeyed.

  13. When the ‘esteemed’ US Capital is occupied predominantly by greedy-swine, low-life, back-stabbing, unprincipled scoundrels who wield their power to loot, pillage, plunder a nation into subservience, any concern over what Trump does is minuscule. Trump’s gone in 4 years.

    How do we rid ourselves of the duplicitous, low-life, back-stabbing, unprincipled greedy-swine scoundrels, many of whom have held their positions of power for 50 years. As long as I’ve been alive.

    Obviously, voting doesn’t work.

    What to do.

  14. Nothing says “calm down” like we are going to impeach the president -again -and if that does not work, we will invoke the 25th amendment.

  15. 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.

    I guess my command of English isn’t good enough. That close distinction between, “imminent,” and, “foreseeably,” may be my point of confusion. More explanation would help.

    But, to shift the point slightly, what if the audience to the alleged incitement has been at that moment actively discussing and ostensibly planning to do the illegal conduct? If the speaker knows those discussions are ongoing, and encourages the conduct, how could that fail the, “imminent” test? What more could be required?

    1. I feel like investing in a dictionary might help you.

      imminent
      [ im-uh-nuhnt ]
      adjective
      likely to occur at any moment; impending:

      or

      im·​mi·​nent | \ ˈi-mə-nənt \
      Definition of imminent
      : ready to take place : happening soon

      There are many more. But all will tell you the same thing: it’s not something that might happen at some point in the future (“foreseeable”). It’s something that’s about to happen right now.

      1. Nieporent, perhaps we both need help. Nothing I see in several dictionaries I consulted suggests, “foreseeable,” carries the implication of contingency which your use of, “might happen,” seems to imply. That leaves us to evaluate whether a reliably upcoming event described as, “imminent,” will occur before or after one described as, “foreseeable.” I get no help from the dictionaries on that question—let alone on how large differences in those hypothetical intervals would have to be to make a legal difference.

        Why don’t we put that aside, and instead hear your answers to the questions I asked in my last paragraph—the questions which showed I had anticipated your nit-picking, and was trying to get some kind of practical guidance to help resolve an ambiguity.

  16. “Nor should we want ordinary citizens to be criminally punished for such speech. ”
    But we will be.

  17. Can we be clear about something – first, the assumption that Trump commands an army of violent people. A stereotype at best. And one that found a lack of evidence with but a small fraction of the people that were there. If he truly could advance violence on any scale as the commander, don’t you think that things could have been much worse? Yes. Absolutely. So if he indeed “incited” a call to violence, the headlines would still be flooded with a much larger and longer event. Since this site is called “Reason” I think that some at least common sense would prevail in this view.
    That being said, and with the push that is still going on to incite the right to even more tensions, including that from the left aisle, are they going to be called for their role of incitement?
    Incitement includes provocation. And the last four years has been inviting this event.

    Frankly, I’m surprised that it wasn’t worse, and that it was that easy to break up, especially of the assumption of dog whistle. But with the push continuing? I imagine it to get much worse. But still doubtfully not hitting the streets and businesses as we have been seeing for months now.

    Just saying …

    1. It wasn’t worse because most of the rioters were surprised that they got in at all, and therefore mostly took selfies. They expected to be pushed back by the cops.

  18. Question for all you smart guys out there. I keep hearing about pubs in general and Trump in particular using a dog whistle to get peeps to do bad stuff. So what is the legal standard to prove in court that a dog whistle was used?

  19. “The problem here is that it’s Trump’s job to prevent and stop rioting, especially rioting against federal institutions.”

    What was the reaction when he tried to stop the rioting against the federal courthouse in Portland?

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