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Free Speech

Court in Civil Case Holds Trump's Jan. 6 Speech Could Be Constitutionally Unprotected Incitement

But the claims against Donald J. Trump, Jr. and Rudy Giuliani are dismissed.

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In Thompson v. Trump, various plaintiffs are suing President Trump, Donald J. Trump Jr., Rudy Giuliani, and others for injuries (physical or emotional) caused to them in the Capitol as a result of the January 6 riot. The core claims are brought under the federal statute banning conspiracy "to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof."

Today, Judge Amit Mehta concluded that there was sufficient evidence that President Trump participated in such a conspiracy, and that his January 6 speech wasn't protected by the First Amendment against civil liability for such conspiracy, because it fit within the "incitement" exception recognized in Brandenburg v. Ohio (1969): Speech is unprotected if it "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." (The court doesn't discuss any criminal prosecution questions, but in a criminal case the elements of incitement would presumably have to be proved beyond a reasonable doubt; in a civil case, preponderance of the evidence likely suffices.)

Here is the heart of the Court's incitement analysis (there's of course much more in the opinion, which is 112 pages long, about various other aspects of the case), followed by some reactions on my part:

The President's words on January 6th did not explicitly encourage the imminent use of violence or lawless action, but that is not dispositive. In Hess v. Indiana (1973), the Supreme Court recognized that words can implicitly encourage violence or lawlessness. In reversing Hess's conviction, the Court held that there was "no evidence or rational inference from the import of the language" intended to produce, or likely to produce, imminent disorder. By considering the "import of the language," and the "rational inferences" the words produce, the Court signaled that there is no safe haven under Brandenburg for the strategic speaker who does not directly and unequivocally advocate for imminent violence or lawlessness, but does so through unmistakable suggestion and persuasion….

Having considered the President's January 6 Rally Speech in its entirety and in context, the court concludes that the President's statements that, "[W]e fight. We fight like hell and if you don't fight like hell, you're not going to have a country anymore," and "[W]e're going to try to and give [weak Republicans] the kind of pride and boldness that they need to take back our country," immediately before exhorting rally-goers to "walk down Pennsylvania Avenue," are plausibly words of incitement not protected by the First Amendment. It is plausible that those words were implicitly "directed to inciting or producing imminent lawless action and [were] likely to produce such action."

The "import" of the President's words must be viewed within the broader context in which the Speech was made and against the Speech as a whole. Before January 6th, the President and others had created an air of distrust and anger among his supporters by creating the false narrative that the election literally was stolen from underneath their preferred candidate by fraud and corruption. Some of his supporters' beliefs turned to action. In the weeks after the election, some had made threats against state election officials and others clashed with police in Washington, D.C., following pro-Trump rallies. The President would have known about these events, as they were widely publicized. Against this backdrop, the President invited his followers to Washington, D.C., on January 6th. It is reasonable to infer that the President would have known that some supporters viewed his invitation as a call to action. President Trump and his advisors "actively monitored" pro-Trump websites and social media. These forums lit up in response to the rally announcement. Some supporters explicitly called for violence on January 6th (e.g., calling for "massing hangings and firing squads"). Others took direct aim at the Certification itself (e.g., stating that people in the Capitol should "leave in one of two ways: dead or certifying Trump the rightful winner") or at law enforcement ("Cops don't have 'standing' if they are laying on the ground in a pool of their own blood."). These violent posts were discussed "by media outlets regularly viewed by President Trump, including Fox News." The prospect of violence had become so likely that a former aide to the President predicted in a widely publicized statement that "there will be violence on January 6th because the President himself encourages it."

Thus, when the President stepped to the podium on January 6th, it is reasonable to infer that he would have known that some in the audience were prepared for violence. Yet, the President delivered a speech he understood would only aggravate an already volatile situation. For 75 uninterrupted minutes, he told rally-goers that the election was "rigged" and "stolen," at one point asserting that "Third World Countries" had more honest elections. He identified who the culprits were of the election fraud: "radical Left Democrats" and "weak" Republicans. They were the ones who had stolen their election victory, he told them. He directed them not to "concede," and urged them to show "strength" and be "strong." They would not be able to "take back [their] country with weakness." He told them that the rules did not apply: "When you catch somebody in a fraud, you're allowed to go by very different rules." And they would have an "illegitimate President" if the Vice President did not act, and "we can't let that happen." These words stoked an already inflamed crowd, which had heard for months that the election was stolen and that "weak politicians" had failed to help the President.

So, when the President said to the crowd at the end of his remarks, "We fight. We fight like hell and if you don't fight like hell, you're not going to have a country anymore," moments before instructing them to march to the Capitol, the President's speech plausibly crossed the line into unprotected territory. These words did not "amount[] to nothing more than illegal action at some indefinite future time." President Trump's words were, as Justice Douglas termed it, "speech … brigaded with action." Brandenburg (Douglas, J., concurring). They were plausibly "directed to inciting or producing imminent lawless action and [were] likely to incite or produce such action." Hess….

[T]he court [has] assiduously avoided relying on any allegations that Plaintiffs made about any person's reaction to the President's January 6 Rally Speech. (And, Plaintiffs did make such allegations.) {The court takes no position on whether the subjective reaction of a listener might have some relevance to the inquiry.} The court's conclusion rests on the words spoken and their context, including the audience to whom the President spoke and when he spoke to them….

[T]he President focuses on the fact that when he first alluded to marching to the Capitol, he said he expected rally-goers "to peacefully and patriotically make your voices heard." Those words are a factor favoring the President…. But the President's passing reference to "peaceful[] and patriotic[]" protest cannot inoculate him against the conclusion that his exhortation, made nearly an hour later, to "fight like hell" immediately before sending rally-goers to the Capitol, within the context of the larger Speech and circumstances, was not protected expression….

[The President] called for thousands "to fight like hell" immediately before directing an unpermitted march to the Capitol, where the targets of their ire were at work, knowing that militia groups and others among the crowd were prone to violence. Brandenburg's imminence requirement is stringent, and so finding the President's words here inciting will not lower the already high bar protecting political speech….

The nineteenth century English philosopher John Stuart Mill was a fierce advocate of free speech. But Mill understood that not all speech should be protected. In his work On Liberty, Mill wrote, "No one pretends that actions should be as free as opinions. On the contrary, even opinions lose their immunity, when the circumstances in which they are expressed are such as to constitute their expression a positive instigation to some mischievous act." As an example Mill offered the following:

An opinion that corn-dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn- dealer, or when handed about among the same mob in the form of a placard.

President Trump's January 6 Rally Speech was akin to telling an excited mob that corn-dealers starve the poor in front of the corn-dealer's home. He invited his supporters to Washington, D.C., after telling them for months that corrupt and spineless politicians were to blame for stealing an election from them; retold that narrative when thousands of them assembled on the Ellipse; and directed them to march on the Capitol building—the metaphorical corn-dealer's house—where those very politicians were at work to certify an election that he had lost. The Speech plausibly was, as Mill put it, a "positive instigation of a mischievous act." Dismissal of Plaintiffs' claims on First Amendment grounds is not warranted.

Here's my general thinking: The Court has indeed held that incitement is constitutionally unprotected, and a speech to a large group of people assembled in a place where they can do harm is indeed the kind of thing that could potentially satisfy the "imminence" element of incitement. (Again, recall, that the exception covers speech that "is [1] directed [i.e., intended] to inciting or producing [2] imminent lawless action and is [3] likely to incite or produce such action.")

As to intent, I'm skeptical that Trump specifically intended to get members of the audience to act criminally, and not just to engage in lawful protest, simply because such criminal action was clearly politically and practically bad for Trump. There was no real chance, I think, that a criminal attack would get the members of Congress to go along with Trump—members of Congress may be cowed by the threat of political retaliation (indeed, in some situations they are supposed to be), but I very much doubt that they would be cowed by even the threat of violence.

This having been said, there may be enough evidence to bring the questions of intent and especially likelihood before a jury, especially if the standard is preponderance of the evidence, as it usually is in civil cases (though note that sometimes the civil standard is elevated to clear and convincing evidence, as with the knowledge/recklessness prong in public official libel cases).

But the bigger point is beyond Trump, I think. As we saw in the twelve months ending with January 6, 2021, political violence is hardly unique to one particular political dispute or one particular side. And any standard for upholding civil liability for such speech (if it's ultimately accepted on appeal) will surely be applied far beyond this case, especially since nothing in the plaintiffs' theory is limited to speech by the President, or speech about elections, or speech that leads to an attack on the Capitol as such, or for that matter speech that stems from erroneous factual claims as opposed to correct factual claims or for that matter expressions of opinion. (The courts' decision, after all, deals with the incitement exception and not the libel exception.)

Say, for instance, that many in the public are deeply upset about what they perceive (rightly or wrongly) as a vast and disproportionate number of police murders of unarmed people of a particular racial group—or for that matter a wide range of other perceived injustice, whether related to racism, economic fairness, labor union rights, environmentalism, or what have you. Movement leaders (whether elected officials or otherwise) echo these sentiments, and indeed help urge these sentiments.

Many of these people gather for a rally, at which a movement leader is speaking. Most of the audience have no violent or otherwise illegal intentions, but some (as in so many movements) do, and the leader, not being an idiot, knows that. The leader speaks for a long time about all the grievances that the audience and he share, and includes statements such as

[W]e fight. We fight like hell and if you don't fight like hell, you're not going to have [justice / fairness / a planet] anymore

and

[W]e're going to try to and give [elected officials / police reformers / etc.] the kind of pride and boldness that they need to take back our country.

He then exhorts the rally-goers to march to City Hall, or a police station, or some oil company headquarters. Unsurprisingly, some of the people then move on to break into the building, or vandalize it, or set fire to it, or to shoot at police officers protecting it.

Perhaps it's good if those physically or emotionally injured in the resulting illegal conduct could sue the movement leader for his speech (or perhaps even if prosecutors could prosecute him). Or perhaps it's bad. But my prediction is that the results that apply to Trump will quickly be applied to lots of other speakers in contexts where some attendees at a political rally act illegally.

NEXT: More Threats to Faculty Tenure on the Horizon

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  1. Or suppose a mob gathers outside the home of Senator McConnell, chanting “Murder Turtle” — is that speech protected?

    1. 'Murder the Turtle' might be unprotected but 'Murder Turtle' sounds like they're calling him a turtle that murders, which is definitely protected and not too far off the mark.

      1. "Murder turtle" is a noun phrase.

        "Murder Turtle" sounds like a command to kill someone with a goofy nickname, a proper noun, Turtle.

        1. How do you chant in Capital letters?

    2. The Inquisition lasted 700 years and greatly enriched the Vatican. It ended when French patriots beheaded 10000 high church officials. Heed that model.

      1. American patriots should form the Committee of Public Safety.

        1. The fentanyl crisis will eliminated common law crime. Lawyers do not use fentanyl. It will take a separate program to control this toxic profession.

  2. I would think that one takeaway from Trump prosecution would be that this future labor leader, or gun rights advocate, who is whipping her crowd into a frenzy, will be doing so with full understanding of the risks.

    So, in her fiery speech, she'll include, "We will fight to the end, to accomplish XYZ. **But, we are not animals. We are human beings. You should go out and March. You should protest loudly. But DO NOT damage any property that does not belong to you. DO NOT harm other people. That includes people protesting *against * XYZ. That includes law enforcement. This protest CAN be disruptive. But it MUST be peaceful."

    I'm not sure how imposing this kind of standard would chill speech in any meaningful or harmful way.

  3. Looks like the paragraph starting with "Here's my general thinking" should be outside the block quote?

    1. Whoops, fixed, thanks!

  4. "As to intent, I'm skeptical that Trump specifically intended to get members of the audience to act criminally, and not just to engage in lawful protest, simply because such criminal action was clearly politically and practically bad for Trump. "

    Oh come on. That's an embarrassingly unsound argument when talking about someone who's taken countless other actions that even members of his own party considered politically and practically bad.

    1. It is, but that's the nature of being an otherwise-sensible person in today's Republican party when he's still angling for a court nomination.

      Can't state the obvious when the authoritarian who might be the gatekeeper keeps such a close lookout for witches to burn. Which is why you see so many "good for one ride only" views from these folks.

  5. The First Amendment should protect Trump in this case, because if it doesn't, bad things could happen in future situations (where Eugene's hypotheticals involve liberal cause). The First Amendment should not protect the New York Times in its case (in which Sarah Palin was the Plaintiff) because liberal media needs to be reigned in(?)

    That sounds right.

    1. We all know the Justice system will apply these standards in one direction.

      1. Where we = disaffected, desperate, defeated clingers.

        1. "Clingers" - Drink!

          1. He's just still upset that there are over 9 million new, first time "Clingers" that bought firearms last year. In the meantime he's terrified his neighbors might all be taking Concealed Carry courses, so he has heartburn.

  6. I think that Trump has an immediate appeal available under the collateral order doctrine, limited to Judge Mehta's denial of his claim of immunity. Let's hope the appellate court acts quickly if an appeal is taken.

  7. The District Court's treatment of the Brandenburg First Amendment issue is based on plausibility analysis under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), not probable cause analysis. But I hope the Department of Justice finds it persuasive.

    If Donald Trump has to appear before a District of Columbia jury, he's toast.

    1. That is indeed the real problem here. No Republican tried in D.C. on anything political can expect an unbiased jury; The jury pool is so overwhelmingly Democratic that even a trivial effort during voir dire can assure a 100% Democratic jury.

      1. And we all know how Democrats like to apply the law. Anyway they can twist to achieve their preferred outcomes.

      2. "No Republican tried in D.C. on anything political can expect an unbiased jury."

        Trump should have taken that into consideration before he committed the crimes. But he thinks the law does not apply to him.

        1. Right, and Democrats should have taken into consideration it is Texas when they decided to fight the Texas abortion law (SB 8?).

          Because each jurisdiction can be as bigoted and prejudiced as it wants.

          1. A D.C. jury is unlikely to apply nullification, which appears to be Trump's only defense.

            1. No, they're likely to apply it's exact inverse, and convict him regardless of any deficiency in the charges or evidence.

              1. As Groucho Marx observed, time wounds all heels.

              2. Since this scenario is so likely, perhaps you can provide us instances in the past where a Republican in a jury trial in DC was convicted unjustly by a jury. It must happen all the time, right?

      3. There's the conspiracy Brett needs to justify his belief system. Trump would be found guilty not because of actual guilt, but because the system was politically rigged against him!

        1. Yes. Some conspiracies are real.

      4. Good lord, Brett. Democratic does not mean irredeemably partisan.

        Some bias? No doubt, conscious or unconscious. But 1) that's an attribute of the jury system people tend to like, versus technocratic judges, and 2) it's not a kangaroo court; despite what the Internet may indicate, most people are not pure political robots.

        1. Individual Democrats may well be non-partisan. A jury is more than one. An aggregate. You know, as in probably going to be more partisan in a statistical sense. That;s why juries are 12, not 1.

          1. In a statistical sense is not what Brett seems to be saying.

            1. It's mixed: I'm saying that the statistics of the DC jury pool are such that it's relatively easy in voir dire to create a jury consisting entirely of Democrats. And maybe even exclude any moderate Democrats.

      5. Preparing your argument in case Trump is convicted?

        Are you really arguing that it is pointless to ever try a politician on any charge, because the political views of the jurors will determine the result?

        Or is it only Democratic jurors who act that way, while Republicans are models of impartiality and careful unbiased evaluation of the case?

        1. Are you really arguing that it is pointless to ever try a politician on any charge, because the political views of the jurors will determine the result?

          Not any charge, but when the charge itself is steeped in partisan politics any individual juror is likely to evaluate credibility/bias/etc. differently based on their own political mindset. That's not really any different than what routinely happens with criminal juries vis-a-vis individual jurors' attitudes toward police, racial issues, etc. Not how we want the system to work in an academic sense, but certainly how it works in the real world.

          Or is it only Democratic jurors who act that way, while Republicans are models of impartiality and careful unbiased evaluation of the case?

          I'd say the attractiveness of DC as a forum is precisely because prosecutors fear that Rs will perform just a politically-biased evaluation of the case as Ds. That would tend to result in a hung jury, which is... unhelpful.

  8. But my prediction is that the results that apply to Trump will quickly be applied to lots of other speakers in contexts where some attendees at a political rally act illegally.

    My prediction is that EV's prediction is fanciful. Trump-law and general-law are chalk and cheese.

    1. Apply the standards Trump is being held to and half the elected Democrats in DC would be up on the chopping block with him, or if they were applied timely, would not be in office today. If the law does not apply evenly I see no reason to respect or any of it's corrupt institutions.

      1. Maxine Waters, at a minimum, would a prime candidate for this kind of suit.

  9. "Having considered the President's January 6 Rally Speech in its entirety and in context, the court concludes that the President's statements that, "[W]e fight. We fight like hell and if you don't fight like hell, you're not going to have a country anymore," and "[W]e're going to try to and give [weak Republicans] the kind of pride and boldness that they need to take back our country," immediately before exhorting rally-goers to "walk down Pennsylvania Avenue," are plausibly words of incitement not protected by the First Amendment."

    I'm a bit puzzled here. Is the judge positing some sort of retro-causality?

    7:39 p.m., January 5, 2021; Pipe bombs were planted.
    12:30 p.m. January 6; A crowd appears at the Capitol building
    12:49 p.m. The bombs are reported. (Likely to divert the police.)
    12:53 p.m. The attack begins, police are overwhelmed.
    12:53 p.m. The barricades are breached.
    1:10 p.m. Trump speaks those words.

    How the hell can words be claimed to incite an attack which happens before they are spoken?

    1. Why do you think reality matters in this? It’s Trump Law.

    2. It's a relativity thing. Speeda light, that sort of thing.

    3. You and your damn facts!
      Can't you see this is TRUMP!??

        1. no argument lol - cope more

    4. Amazing how Brett and others seem to believe that everything ended when the mob who had been there most of the morning pushed aside the bicycle-rack barricades on the Capitol grounds around 1pm. Let's keep the timeline going, shall we?

      1:10p.m. Mr Trump ends his speech with the words: "We fight. We fight like hell and if you don't fight like hell, you're not going to have a country anymore. So let's walk down Pennsylvania Avenue." Many at the Capitol are listening to the speech on their phones and those words pass rapidly among the rioters. Shortly afterwards a Capitol police officer calls for backup. "They're throwing metal poles at us. Multiple law-enforcement injuries." Capitol police send an evacuation warning.
      1:45p.m. Protesters surge past Capitol police protecting the west steps (side facing the White House). Minutes later, an officer declares a riot at the Capitol. "We're going to give riot warnings," he says. "We're going to try to get compliance but this is now effectively a riot."
      2:13p.m. Secret Service evacuates Mr. Pence from the Senate floor.
      Protesters break through windows and push inside the Capitol, then kick open doors to let others in.
      An immediate recess of the Senate is called. Officer Eugene Goodman, after warning Senator Mitt Romney that the mob is approaching, lures the armed rioters away from the upper chamber. Many are calling for Mr. Pence to be hanged. At that point, rioters are within 100ft of Mr. Pence and a foot away from one of the doors to the chamber, with many senators still inside.
      At the same time, Ms. Pelosi is rushed from the house floor and evacuated from the Capitol complex to a secure off-site location. , Rioters are spreading out across the building, searching for Ms. Pelosi and chanting: "Where are you Nancy?"
      2:24p.m. President Trump tweets "Mike Pence didn't have the courage to do what should be done to protect our Country and our Constitution..."
      At the same time, Mr. Pence is being evacuated to a secure location. Rioters start to spread through the buildings and others break in from outside through various doors. They open the east side door rotunda door and more people flood through the doors, overwhelming the officers.
      The House floor debate is suspended and House members are told to reach for tear gas masks and be prepared to use them. The House is called back into session but minutes later is is abruptly recessed and lawmakers are told "Folks have entered the rotunda and are coming this way." The mob outside the chamber grows larger and they get within feet of the house door.
      2:26p.m. President Trump called Senator Mike Lee who, at Mr. Trump's direction, handed his phone to Senator Tommy Tuberville, who told reporters "I said: Mr President, they've taken the vice-president out. They want me to get off the phone, I gotta go."
      2:41p.m. Ashli Babbit turns the corner towards the House lobby doors as House members are leaving. In a hallway outside the House chamber, a group attempts to force its way through a set of locked doors. Rioters shatter the door's windows, some chanting "break it down, break it down." Video shows the hands of an officer on the other side, holding a gun and pointing it toward the mob. Babbit climbs partly through the window frame, a gun fires, and Babbitt falls from the window frame to the ground. People trapped inside the gallery of the chamber tell each other to take off their congressional pins.
      In the meantime, a number of rioters enter the Senate gallery, some rifle through papers and materials left behind by lawmakers, one saying "There's got to be something we can use against these scumbags."
      3:13p.m. Mr. Trump tweets telling people to "...remain peaceful. No violence!..." Video shows a sprawling mob remains at the Capitol.
      4:17pm. Mr. Trump releases a video telling people to go home, saying "I know your pain. I know you're hurt. We had an election that was stolen from us. It was a landslide election and everyone knows it, especially the other side. But you have to go home now.... We love you, you're very special. We've seen what happens, you see the way others are treated that are so bad and so evil. I know how you feel..."
      6:00p.m. Fifteen minutes after police confirm Ashli Babbitt has died, Trump tweets: "These are the things and events that happen when a sacred landslide election victory is so unceremoniously and viciously stripped away from great patriots who have been badly and unfairly treated for so long. Go home with love and in peace. Remember this day forever!"

      1. Thank you for shoving facts in the faces of those who don't want them to exist.

      2. Who was throwing the metal poles? The people who breached the barricades? Who were... already in the process of rioting and so not listening to his speech?

      3. You are totally blowing off the fact that the attack was clearly premeditated, and began before Trump spoke the supposed incitement.

        Sure, it didn't END before he finished his speech. That's irrelevant. It STARTED before he finished, before he spoke the supposed incitement. It doesn't matter if people who weren't even listening because they were too busy rioting didn't stop rioting before the speech ended.

        1. They are absolutely convinced that post hoc, ergo propter hoc, because Trump.

        2. Egging a crowd on to further and increased violence would still be unprotected under the 1A, even if the lawlessness had already begun.

          That does not mean that Trump's speech necessarily rose to the level of unprotected incitement, but the fact that the violence had already begun is not dispositive.

        3. Why do you neglect the rest of the findings in Judge Ahmet's 112-page decision? It addressed not just those final words spoken at 1:10pm, but the weeks and months of provocation Trump used to bring the crowd to Washington DC and prime them for violence. The people at the Capitol through that morning were inspired to violence not just the final speech, by also by Trump's previous months of incitement.

          Why do you neglect everything that happened after 1:10pm? Most efforts up until then were relatively minor shoving and skirmishing (including the breach of the bicycle racks). The actual riot was not declared until 1:45pm, and the Capitol building wasn't breached until 2:13pm—an hour after Trump's final exhortation of "if you don't fight like hell, you're not going to have a country anymore—and continued for hours afterwards. Not until 4:17pm—after hours of rioting and only after the police finally received adequate reinforcements and had started regaining control, square foot by slow square foot—did Trump release a short video ambiguously supportive of the riot, and ending with the words "So go home. We love you. You're very special."

          Donald Trump used his final rally as the focus point and culmination of his years-long campaign of ruthless, relentless, denialist propaganda. He spent several months before the election priming his followers, and the two months after, aiming them at his June 6th insurrection attempt—including many groups and individuals already vowing to overrun the Capitol, and relatively uninterested in attending a rally (especially the militia wanna-be's and White Nationalist shock troops).

          So, you are correct, many of them skipped the rally and, starting at dawn, went straight to the Capitol. They felt no need to wait for Trump to stop speaking because they already had their orders, but started the preliminary violence and initial skirmishes leading up to the main event well before the vast majority of rally-goers arrived.

          As a sitting president failing to gain the constitution’s mandated reapproval of the people, Donald Trump tried to block that peaceful transfer of power to nullify an election he unambiguously lost. For months before and after the election he incessantly repeated his Big Lie — that only an unimaginably complex conspiracy among evil people committing massive fraud could block his “win in landslide”—to convince his supporters the election would be stolen from them.

          The violence Trump provoked managed to delay Congress for a few hours but, in the end, did not prevent the peaceful transfer of power. Yet he tried, to the best of his abilities. I do not give him credit for trying, but failing.

          1. People should not consider speech from "weeks and months" earlier because the Supreme Court has held (Hess v. Indiana, 1973) that such delay means it is not incitement of "imminent" lawless action or disorder.

            1. Judge Ahmet addresses that, noting specific direction to act on a future date certain (like January 6th), lies somewhere between a general statement that some target should be subject to violent action in some unspecified future, and an exhortation to burn that building down, now!

              Accordingly, his decision is that, assuming the facts of the pleading are true (as he must do at this point), there is no legal barrier to addressing them at trial. The decision really is worth reading.

              1. He can try to distinguish that, but it's still a dumb argument that is entirely contrary to precedent. As Brett says, "Trump law" applies. It's the rule of angry men rather than of law.

          2. Why do you neglect the rest of the findings in Judge Ahmet's 112-page decision? It addressed not just those final words spoken at 1:10pm, but the weeks and months of provocation Trump used to bring the crowd to Washington DC and prime them for violence.

            Which decision are you reading? The one linked here says: "Plaintiffs do not contend that President Trump’s words prior to the January 6 Rally Speech (almost entirely through tweets) meets the Brandenburg incitement exception. They focus on the Rally Speech, so the court does, too, starting with a summary of what he said."

            Given that, the obvious answer to your question is that we "neglect" them because the plaintiffs didn't plead that they have any legal relevance to the cause of action. They're just gratuitous window dressing.

        4. Brett: "You are totally blowing off the fact that the attack was clearly premeditated, and began before Trump spoke the supposed incitement."

          You are totally blowing off most of Judge Ahmet's decision, which details how the majority of Trump's incitement, provoking actions from his followers aimed at intimidating Congress on January 6th, happened before January 6th.

          1. I'm blowing it off because, as Michael P points out, speech that far in advance of a riot cannot legally be "incitement".

            1. Spreading the "Hands Up Don't Shoot" narrative for years leading up to the riots of 2020 was not incitement either.

        5. the attack was clearly premeditated

          Wait, Brett.

          I thought they were just tourists casually wandering in through an open door.

          Suddenly, when necessary to defend Trump, it was premeditated attack.

          1. It's hardly my fault if you insist on deliberately misunderstanding what people you disagree with say.

      4. Nice of you to bring up the bicycle barricades. Who is Ray Epps, the man leading the barricade breach?

        https://www.revolver.news/2021/12/damning-new-details-massive-web-unindicted-operators-january-6/

      5. Thanks, PM.

        You know, Bellmore notwithstanding, that doesn't sound like a description of how tourists behave.

    5. Yeah, Trump put those oily rags in the corner yesterday, so his speech now couldn't have been what set the fire!

      1. To be clear, I really don't think Trump cleared the bar for incitement, but those pretending his speech was cool and good and had nothing to do with what happened that day are willfully blind tools.

        1. Yeah, I don't care if it was "cool and good" in your opinion. Democrats spout stuff all the time that isn't "cool and good" in my opinion, and I don't propose to sic the law on them.

          I care when some idiot judge suggests that a riot was incited by words spoken after it started.

          1. That's not what the judge said, so dunno why you're so bent out of shape.

            1. He said it's entirely possible that that's the case, which anyone with a functioning brain can see is bullshit. Don't be willfully obtuse.

  10. "The core claims are brought under the federal statute banning conspiracy 'to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof.'"

    It's worth noting that the plaintiffs are members of Congress who allegedly were inimidated from performing their alleged duty, not passers-by who happened to be caught up in the violence.

    It's also worth noting that quite a few street level crimes, like two drug dealers agreeing to try to prevent law enforcement agents from finding their stash, could be actionable under this law or charged as seditious conspiracy, but by tradition we don't do that.

    1. "It's also worth noting that quite a few street level crimes, like two drug dealers agreeing to try to prevent law enforcement agents from finding their stash, could be actionable under this law or charged as seditious conspiracy, but by tradition we don't do that."

      Really? Who would sue? What are the damages?

      1. Really? Who would sue? What are the damages?

        I am really, really trying to turn over a new leaf and not feed the trolls, but since this particular one pretends so hard to be a lawyer I'll just gently point out that seditious conspiracy is a criminal charge.

        As to section 1985, a private cause of action is available to "the party so injured or deprived," so that could be prosecutors or anyone else in the law enforcement bubble who feel like the conduct of the drug dealers prevented them from "discharging any duties thereof," as Swalwell et al. are here.

        1. Seditious conspiracy is a criminal charge. That is true, but quite irrelevant. "This law" that John F. Carr referred to is 42 U.S.C. 1985(1), which provides a civil remedy. In Mr. Carr's far-fetched hypothetical, there are no damages.

          And I am not pretending. I practiced law for 28 years before retiring, mostly criminal defense work.

          1. I practiced law for 28 years before retiring, mostly criminal defense work.

            Ok, so assuming you were any good at it, based on your conduct around here we're left to believe you routinely distort and conflate legal issues with the full knowledge you're doing so. Troll it is.

            "This law" that John F. Carr referred to is 42 U.S.C. 1985(1)

            Case in point. You quoted his exact language in your original post, which said "actionable under this law or charged as seditious conspiracy."

            Enjoy the rest of your weekend.

            1. I was referring to civil proceedings in my earlier comment. The questions about who would sue and what are the damages should have given a clue.

              As for a criminal charge of seditious conspiracy, 18 U.S.C. 2384 states:

              If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.

              Hardly applicable to "two drug dealers agreeing to try to prevent law enforcement agents from finding their stash", absent an agreement to use force in doing so (and even that would be a stretch). Judge Mehta's opinion would have no application to that hypothetical.

  11. Can anyone show me exactly what Trump said thats classified as 'unprotected incitement'? Is it any worse than this?

    https://i.ibb.co/LQhJ5yJ/unrest2.jpg

    1. Can anyone show me exactly what Trump said thats classified as 'unprotected incitement'?

      Well, we can and have and did. It's right in the post. Nobody can make you pay attention, though.

      Is it any worse than this?

      Than things you photoshopped? Yes.

      1. Are you claiming they didn't say that?

        1. None of those quotes is the proximate cause to anything; none of that stuff was driven by federal politicians.
          Unlike Trump's speech and actions the day of and indeed up to and after losing the election. That shit was top-down.

          1. You are delusionally ignorant of documented facts if you think that Democrat consensus -- and, yes, top-down direction -- did not affect both the riots and responses to them. Do you think it was Raz Simone or his crowd who decided that CHAZ had to be renamed to CHOP in order to pretend it wasn't an insurrection?

            We also have at least one person in this thread strongly endorsing an argument that statements made weeks and months in advance of a riot can be considered incitement to riot.

            1. "We also have at least one person in this thread strongly endorsing an argument that statements made weeks and months in advance of a riot can be considered incitement to riot."

              Amazing how spending months spreading lies that the election was stolen, and that his supporters would have to do something about it, and precisely what date they would need to do something about it, and then on that specific date continuing to encourage those supporters to behave unlawfully on his behalf, somehow isn't incitement to people like you.

              Be honest: Do you disagree because a) he's Trump, or b) he's a "Republican?"

              1. I disagree because you are wrong on the facts and laws, of course. Did you pose a false dichotomy because your are stupid, or because you think everyone else is?

                1. By his logic, spreading the "Hands Up, Don't Shoot" narrative for years "incited" riots in 2020.

            2. We also have at least one person in this thread strongly endorsing an argument that statements made weeks and months in advance of a riot can be considered incitement to riot.

              Of course they can be so considered, though even if they were, they would be constitutionally protected under Brandenburg.

              But, well, let's say that you keep tweeting that your neighbor is a child molester. That's not incitement. say "I hate my wife." That's constitutionally protected. But if a few weeks or months later you're suspected of killing her, the fact that you said this constitutionally protected thing can still be evidence of your intent.

              Similarly, the fact that Trump spent two months riling people up is evidence about what he was doing on the morning of 1/6 when speaking before an angry mob.

              1. And if he had spoken before an angry mob, something you said above might have some relevance. A lot of relevance if he'd spoken to them just before they rioted.

                But, as the angry mob were at the other end of the Mall, and busy breaking into the Capitol, while he was speaking before the peaceful rally, I don't see the relevance.

        2. I am claiming they certainly didn't say those things at the times and places your pictures purport to show them doing so. And since that's the central issue in an incitement analysis, this isn't nitpicking.

      2. The quotes are not fabricated. Are you really that stupid or do you just think everyone else is?

        1. Oh, I do think you are. Do you know what the word 'photoshopped' means? It refers to altering pictures, not fabricating quotes.

    2. In their proper context, the first is roughly as bad but the others aren't even in the same ballpark. Number 3 especially is literally an endorsement of the protection the First Amendment gives to free association. You got a problem with free association?

      1. Free association hasn't existed since 1964 at least. A third-rate nonentity excised from a piece of paper. Heck, the enumerated right to keep and bear arms gets less judicial respect than the made-up right to an abortion; what chance did freedom of association ever have?

      2. In their proper context the Trump tweets are a call simply to protest. He's repeatedly called on his supporters to be peaceful. But if you want to ignore context you should also do the same for the Democrats who appear to be urging riots and sometimes actually are.

        1. You dodged my question as to whether you have read Judge Mehta's opinion. Why so?

        2. Simple...because Amos's point is directly addressed in the decision (and partially quoted in EV's extract). And Amos certainly doesn't want to read that! But here's part of it:

          [T]he President focuses on the fact that when he first alluded to marching to the Capitol, he said he expected rally-goers "to peacefully and patriotically make your voices heard." Those words are a factor favoring the President…. But the President's passing reference to "peaceful[] and patriotic[]" protest cannot inoculate him against the conclusion that his exhortation, made nearly an hour later, to "fight like hell" immediately before sending rally-goers to the Capitol, within the context of the larger Speech and circumstances, was not protected expression….

          1. The tedious leftist's refrain of "That's not funny!" has devolved into "That's not [extremely common and well-understood] metaphor!"

            https://i.imgflip.com/16h0pr.jpg

            1. The tedious Trumpist's refrain of "I was just joking" and willful ignorance of context goes far in enabling avoidance of thoughtful consideration of specific events.

        3. He's repeatedly called on his supporters to be peaceful.

          "Repeatedly" does not mean what you think it does. Also, he has far more frequently said the opposite.

          Not playing the Trumpkin game of finding the one time out of 1,000 where he said something good/innocuous and pretending that it renders non-operative the other 999 terrible things.

    3. AmosArch, have you read Judge Mehta's opinion? It is thorough and detailed.

      And no one should care about your what about.

      1. The opinion is hack bullshit.

        It's not whataboutism, it's pointing out blatant hypocrisy to which you must be willfully blind so as to preserve your partisan narrative.

      2. The very first sentence of the ruling is factually incorrect, and the rest proceeds from there.

        On January 6th, there was no transfer of power of any sort. No one gained any authority or lost it. No one assumed any office, or departed one. Nothing changed.

        The fact the this ruling starts like this with a blatant lie and far-Left political rhetoric just shows how absurd the rest of the ruling is.

  12. As to intent, I'm skeptical that Trump specifically intended to get members of the audience to act criminally, and not just to engage in lawful protest, simply because such criminal action was clearly politically and practically bad for Trump. There was no real chance, I think, that a criminal attack would get the members of Congress to go along with Trump—members of Congress may be cowed by the threat of political retaliation (indeed, in some situations they are supposed to be), but I very much doubt that they would be cowed by even the threat of violence.

    First, whether there was a likelihood that his plan would work speaks to whether Trump was being rational, not to what his intent was. "He couldn't have intended that because it would've been stupid" would serve to negate mens rea in half the crimes out there.

    Second, I think you give members of Congress too much credit.

    Third, I think you ignore the actual plot hatched by Eastman, Rudy, etc: not necessarily to directly overturn the election by intimidating members of Congress into changing their votes, but to cause delay to buy Trump time to gin up new slates of electors. (Rudy specifically discussed that in one of his misdirected voice mails.) i.e.:

    1) Mob attacks Capitol.
    2) Vote delayed.
    3) State legislators in Michigan/Arizona/Georgia are inspired/intimidated into certifying new elector slates.
    4) Pence now actually has multiple slates, and a fig leaf to justify him overturning the election. (Remember that Pence never said, "No, it would be morally wrong for me to do that"; he said, "No, I don't have that authority.")

    I think it's plausible that Trump intended that.

    1. "Third, I think you ignore the actual plot hatched by Eastman, Rudy, etc: not necessarily to directly overturn the election by intimidating members of Congress into changing their votes, but to cause delay to buy Trump time to gin up new slates of electors."

      We're not ignoring that, we're quite aware of it. What we're refusing to do is ignore that said plan was actually on track until the riot disrupted it, and that the riot disrupted it was perfectly predictable, the only outcome anybody would have anticipated.

      I know it's a trope on the left to assume that Trump is an idiot incapable of planning, and just blunders around, but that is a mind bogglingly stupid trope: He got elected President! In fact, he got elected President in the teeth of 90% hostile media coverage, and 'his own' party barely pretending not to be opposed to him.

      Claiming he's stupid and a poor planner is insane in the same way calling an Olympic gold medal winner weak and uncoordinated is insane. It's like calling a award winning rapper untalented just because you don't like rap. Or maybe claiming a billionaire is an incompetent businessman...

      Trash talk is stupid enough. Believing your own trash talk is a thousand times stupider. And that's what you're doing here.

      1. The attempted insurrection didn't go as intended. Doesn't mean Trump is not responsible.

        Also, once it did go off the rails *Trump fucking loved it* staying glued to the TV and refusing to do anything to defuse the situation.

        You, Brett, need to stop bouncing between Trump believes a bunch of unreal crazy shit and Trump is a master planner. You're indulging in 1984 levels of doublethink at this point.

        1. They was NO insurrection and your attempt at repeating the Democrat's "Big Lie" is tedious.

          1. I really don't care how bored you are. Also, I said attempted which you seem to have ignored.

            Finally, this shit is on powerpoint.

            1. There was not even an attempted insurrection. And the awe-inspiring "PowerPoint" was never even delivered to Trump. It was the ramblings of some weirdo on his external legal team that Mark Meadows got in his email and promptly ignored. You must have to lie every time you open your mouth or you wouldn't speak at all.

      2. Claiming he's stupid and a poor planner is insane in the same way calling an Olympic gold medal winner weak and uncoordinated is insane.

        No, Brett.

        Trump is a genius at one thing. He's a master con-man, master grifter. That skill is what got him elected, not careful planning or terrific policy ideas or a masterful campaign.

        He got just enough suckers in just the right places to vote for him.

        1. Brett has obviously never seen the movie "Rain Man".

          Trump is an idiot savant, like the title character in Rain Man. Only instead of counting cards or memorizing the phone book his special skill is getting gullible people to believe his bullshit.

          And a sizable number of those people understand that it's bullshit, but believe it anyway, since one of the oldest con-man techniques is to make the mark think he's in on the con.

          1. He's an 'idiot savant' who has succeeded in multiple diverse fields, whether you like it or not. That's not how life goes for idiot savants.

            The truth is that this is trash talk, and Democrats have become stupid enough to believe their own trash talk, and worse, have somehow become convinced that everybody else should also believe it.

            1. He's an 'idiot savant' who has succeeded in multiple diverse fields,

              He succeeded in the field of inheriting lots of money, the field of repeatedly going bankrupt, the field of being a game show host, and the field of being really unpopular.

                1. You really don't seem to have noticed that Trump is the one seething in obscurity in a bunker in Florida while the legal hits just keep on coming.

      3. Brett, what in your opinion was the purpose of calling a political rally in DC on that particular day? What exactly was this competent businessman trying to accomplish?

        1. He was pressuring Congress. You know, "assemble, and petition for redress of grievances"?

          1. That pressure was in furtherance of an antecedent attempt to persuade Mike pence to disregard the Electoral Count Act. Trump's speech to the crowd is evidence of his corrupt state of mind in attempting to obstruct, influence or impede an official proceeding of Congress.

            And as Judge Mehta explained, it crossed the bounds of First Amendment protection. I hope the Department of Justice will take heed of the opinion's reasoning to conclude that it furnishes additional evidence that the criminal law was violated as well. 18 U.S.C. 1512(c)(2).

            1. lmao - you people are delusional. cry harder.

      4. "[S]aid plan was actually on track until the riot disrupted it"??

        Wrong. That plan required the complicity of Mike Pence, which Pence refused.

        1. A plan can be on track, even if there's an immovable obstacle further up the tracks.

          1. Your railway metaphor fails. Pence expressed his unwillingness to cooperate on January 4, and to his credit, he held fast throughout the sordid scenario.

    2. Or consider this scenario: the mob chanting "Hang Mike Pence" manages to get to him and string him up. And maybe they catch and kill enough senators and representatives that the Trump supporters are now a majority in both houses.

      Far fetched? I think we came dangerously close.

      1. We don't even know that Pence was in the building at the time lol - it's just come out that the DOJ was lying about that too. Shocker!

        1. Um, yeah we do. We saw it on television.

  13. Judge Mehta's Brandenburg is helpful, but I continue to believe that Trump's criminal exposure under 18 U.S.C. 112(c)(2) and 1512(k) exists independent of what he said to the crowd on January 6. The conspiracy to corruptly obstruct, influence or impede the official proceeding of Congress was longstanding, and the attempt to do so was complete on January 4 when Trump, John Eastman and others importuned Mike Pence to violate the Electoral Count Act.

    The January 6 speech and Trump's inexplicable refusal to call off the mob for several hours after violence erupted, though, provide further evidence of Trump's culpable mental state.

    1. That should be "Judge Mehta's Brandenburg analysis". I wish we had an edit feature.

    2. Apply that to Obama, Biden, and the others who participated in the Jan 6, 2017 (IIRC) meeting in the White House where they discussed government actions against General Flynn and others in the incoming Trump Administration.

      1. On Jan. 5, 2017, President Barack Obama received a briefing from intelligence officials in the Oval Office about the investigation into Russian efforts to influence the outcome of the 2016 election in favor of Donald Trump. When the briefing was over, he asked Vice President Joe Biden, FBI Director James B. Comey, Deputy Attorney General Sally Yates and national security adviser Susan E. Rice to stay behind for an additional discussion about incoming national security adviser Michael Flynn.

        And later Flynn confessed.

        1. And later the FBI bankrupted Flynn with legal costs, and then threatened to do the same to his family, and he agreed to falsely confess to spare them.

          Then considerable prosecutorial misconduct came to light, and the DOJ agreed in then interest of justice to release him from the plea, and the judge tried to have him prosecuted for perjury for the coerced plea, and he ended up pardoned to stop the rogue judge.

          1. I don't love the FBI, but his confession was not false; they had him dead to rights.

            1. Lying to the FBI is a bullshit process charge left for when they're grasping at straws and you know it. They resurrected a 200-year-old law that had never been used before to go after Flynn because Biden saw it on the West Wing. Your willful partisan blindness is nauseating.

              1. Of course, they did no such thing. You are presumably talking about the Logan Act, but of course Flynn was not prosecuted for violating the Logan Act.

                And 18 USC § 1001 is a very very common charge.

                So apparently you don't like common charges or rare ones, which tends to suggest that maybe your problem is that you just like white Republican criminals.

          2. And later the FBI bankrupted Flynn with legal costs, and then threatened to do the same to his family, and he agreed to falsely confess to spare them.

            There is zero evidence for any of this conspiracy theory, and of course Flynn had access to unlimited funds for his defense through the MAGA grift machine.

            1. There zero evidence that the FBI pressures false confessions out of people? Wow, tell that to this guy:

              https://www.nytimes.com/2007/10/31/nyregion/31about.html

              Stupid partisan hack.

              1. There is zero evidence that the FBI pressures false confessions out of well-connected government officials represented by some of the most high-powered counsel in the country, stupid.

                1. In fairness, the Ted Stevens case provides evidence the government - the FBI and prosecutors - will commit various kinds of misconduct to convict well-connected government officials represented by some of the most high-powered counsel in the country.

        2. Confessed to what, exactly? Funny how you don't say. Maybe because you know that it undermines your narrative.

          1. Lying about his secret dealings with the Russian government. Try to keep up.

        3. And then recanted.

          Which is why a corrupt DC Leftist in a black robe tried to persecute him for lying in his 'confession'.

      2. I don't follow. What does that have to do with obstructing, influencing or impeding any official proceeding?

        Verbs matter.

  14. I'm skeptical that Trump specifically intended to get members of the audience to act criminally, and not just to engage in lawful protest, simply because such criminal action was clearly politically and practically bad for Trump.

    Terrible argument, Eugene.

    You are coming at it from your POV, not Trump's. Your analysis of what is good or bad for Trump is irrelevant. What matters is Trump's opinion.

    1. And the only thing Trump cares about, is that people talk about him.

      Don't attribute to stupidity what you could also attribute to malignant narcissism.

      Or in Trump's case: both.

      1. So you agree that Trump didn't want violence, he only wanted people to talk about him.

        1. He didn't care if there was violence or not, he just wanted to stop the peaceful transition of power.

          The way the violence ended up occurring derailed the plot in the works...But Trump apparently loved the devotion to him it showed even so.

        2. His history demonstrates he loves violence against his opponents. And if it gets people talking about him, well, that's a bonus!

        3. Nope.

          Trump doesn't care what happens to anyone, or anything around him, as long as he's the center of the spotlight.

          If people tell the truth in his name (hah), that's fine.
          If people lie to make him look good, that's fine.
          If people commit violence on his behalf, that's fine.
          If people die to make him look good, that's fine.

          I'm quite certain that you'll come back and claim that none of this is true, or some other bit of nonsense, so I'll close with this:

          "I like the numbers being where they are. I don't need to have the numbers double because of one ship that wasn't our fault."

  15. "Before January 6th, the President and others had created an air of distrust and anger among his supporters by creating the false narrative that the election literally was stolen from underneath their preferred candidate by fraud and corruption."

    IANAL and so don't read a lot of opinions, but I was a bit surprised at the inclusion of "false" in this sentence. Wouldn't have changed the impact were it not there, and without citation it comes across as more personal opinion than a statement of fact. Not that I think the judge was incorrect, but it struck me as odd.

    1. In considering a motion to dismiss for failure to state a claim, a trial court must regard the well-pleaded factual allegations of the complaint as true. At trial the plaintiffs will have the burden of proving that the Trump narrative was false.

      Of course, the occurrence of multiple recounts, the dispositions of scores of lawsuits challenging the election results, and the certification by state authorities of results in the respective states will make that fact easy to prove.

      1. In DC? Please. Any jury seated in the District will have decided to convict Trump no matter what the evidence is. They’d convict if there were no evidence at all.

        1. Yes, people who argue politics on the internet cannot believe there may be some people not as brain-poisoned by politics as they are.

          1. Have you not paid attention to Democrats the 4 years of "TRUMP!!!!!!"

            Come on man -- that's malarky!

          2. You don't have to be on the internet to be brain-poisoned.

  16. Not at all an expert (and the author of the post most definitely is), but the "and" and "such action" in the Brandenberg standard seems to suggest that the likelihood looks to the intent determination for its scope. Since you're considering the speaker's actions, you'd ask if the lawless acts as specifically intended by the speaker were likely to occur, rather than asking if both the speaker intended lawlessness and lawlessness was likely to occur. So if there's no issue for trial on intent based on rational inference of the contextual import of the words themselves, presumably, likelihood alone won't suffice, and can't be bootstrapped in to the intent requirement. You can be standing next to a gas pump with a cigarette lighter, but the question is still whether your specific actions with the lighter evinced an intent for the bad thing to happen. (As opposed to just being dramatic, foolish, and generally a craven idiot, given the situation.)

    Mr. D.

  17. The number of prominent figures -- including Members of Congress -- who engage in political incitement at this level is numerous. Google the words "fight like hell" with any politician you like. Warren; Sanders; Omar. If you go down to the local level, the number of organizer/advocates who say much worse is unlimited.

    If their criminal liability depends on the fortuity of whether a crowd engages in violence in the ensuing 24 hours, this will become a nightmare of bad law.

    1. Actually, criminal liability depending partially on the consequences of one's actions is rather a big thing in the law.

      1. Good thing we had months of violent riots because of Democrat lies in summer 2020, then. Lock them all up!

    2. How about in the ensuing 24 minutes?

      1. How about in the prior 24 minutes? Apparently TDS has filled your brain so full of holes that you believe in retro-causality now.

  18. You are assuming Trump hating law and law are the same thing. How foolish.

    1. You've invented a way to ignore everything you don't like that the legal system does.
      Congrats on saving yourself all that critical thinking.

      1. As if you've ever engaged in critical thinking lmao - cope harder.

  19. So during the riots of 2020 when leftist politicians were encouraging people to take to the streets and "do what needed to be done" or "not put up with this anymore" or the myriad of other statements that were thinly veiled to say "loot and riot more!" that was incitement too I guess, right?

    1. What thinly veiled? I specifically recall a Sponge Bob meme where Sponge Bob explains rioting, damage, and looting are good, if not outright dutiful things, to shock business owners into greater pressure on politicians.

  20. The Democrats expect that this law will never apply to them; it will only apply to non-Democrats. The Democrats are getting desperate now.

    Trump getting sued in DC. Any jury from DC is going to be politically hyper-charged against Trump; it will be impossible for him to get a fair trial there. A DC jury will go in deciding Trump is guilty. There will be a lot of drama and the mainstream news media will make lots of profit.

    I expect the DC Circuit to uphold Judge Mehta’s ruling. But in the end, the verdict against Trump will be thrown out by the Supreme Court because it distorts the law.

    The Dems want to convict Trump in hopes of keeping him from running in 2024. Problem is, the conviction and it’s being overturned by the Supreme Court might be just in time for Trump to win the 2024 election.

    1. Laws are getting applied inconsistently to Democrats and Republicans all the time these days.

      1. Not so anyone can prove. It's more that victimization has become the main driving force of the GOP, so any anecdote will do.

        1. Correct. The GOP is the snowflake party.

        2. Oh yeah, the Summer of Floyd rioters and the 1/6 yahoos have been treated totally the same! Nothing to see there! Not like they just gave an arsonist who killed a man a reduced sentence because he did it for St. George! You cannot be this damn stupid.

  21. In related news, Justin Trudeau incited police to gratuitously brutalize the protesters in Ottawa, including using the cavalry to trample an old lady on a mobility scooter.

    I am looking forward to him being civilly and criminally prosecuted for that.

    1. Do you know how countries work?

      1. Yes, politicians do what they think will get them reelected, stomping on little old ladies, rioting, defending or prosecuting rioting using wildly different narratives.

        And I bet you thought the parallel was inapt.

        1. I'm more thinking a US civil case doesn't have a lot to do with the Canadian Prime Minister.

          1. Unsurprisingly, sarCastro backs the despotic approach. He must think Those People just can't live with the kinda of freedoms and civil rights that a Americans have.

            1. Before we even discuss the policies in Canada, you have a big issue with is and ought.

              You said you were looking forward to Trudeau being civilly and criminally prosecuted under the legal theory espoused in the US case discussed here. Which is idiotic.

              When called on it, you try to switch the argument to a general policy discussion from a factual one. I'm not going to go along with you on that; you were colossally, foolishly wrong. And trying to lash out as you change your goalposts is just making you look pathetic.

              Your knee-jerk anger made you forget Canada is not the US. That's hilarious.

              1. I said no such thing. You really have poor reading comprehension.

              2. "You said you were looking forward to Trudeau being civilly and criminally prosecuted under the legal theory espoused in the US case discussed here."

                No, he said he was looking forward to Trudeau being civilly and criminally prosecuted. You added the "under the legal theory espoused in the US case discussed here" part.

                You have a bad habit of doing this sort of thing, attacking people for saying what you imagine them meaning, even when they've taken great care NOT to say what you imagine.

                1. Off thread to post about it, then.

                  YOU have a bad habit of reading things in a way that lets people you agree with off the hook for being awful.

      2. Canada doesn't have incitement laws? Do you know how reading works?

    2. In related news: No he didn't.

      1. In a strict legal sense, you are right. The police were acting as his agents, so the Canadian equivalent of incitement would probably not apply.

        But it's funny how the hypocrites knee-jerk to sn implicit defense of his despotism, whether it's freezing the bank accounts of freedom donors or literally trampling peaceful protesters with horse-mounted police. What happened to all the outrage over US Border Patrol having reins for their horses?

        1. Despotism: Allowing an illegal blockade of an international port of entry to persist for 3 weeks, affecting the economies of both Canada and the US directly, before doing anything whatsoever involving the police and telling those involved in the ILLEGAL activity that they needed to leave.

          "Freedom donors" LOL. 90% of the Canadian truckers are already vaccinated, and most of the money came from right-wing dipshits in America, who have no business protesting Canadian provincial rules whatsoever.

          This was never about whether mandates are right or wrong, or whether they are good public policy, it was about right-wing grievances - thinking that they don't have to abide by the same rules as everyone else.

          They should've been arrested weeks ago, and their trucks turned into scrap metal.

          As to your 'literally trampling peaceful protesters' nonsense, why don't you get back to us when you have something objectively truthful to say.

          1. Ottowa is an international port of entry? Are you a moron?

            Being vaccinated does not entail opposing the convoy, idiot. 80+% of Canadians are vaccinated and nearly a third of them support the convoy, more than voted for Trudolf.

            1. 1) It's Ottawa.

              2) I was referring to Ambassador Bridge. Something which even a moron could have figured out. I guess we both learned a little about which standards are too high for you to reach.

              3) https://www.cbc.ca/news/canada/ottawa/false-trampling-death-rumours-at-ottawa-protests-a-sign-of-misinformation-campaign-police-say-1.6358308

              4) You're full of shit regarding how many people support the convoy, and we both are fully aware of that fact.

              5) I think it's past time for you to shut the fuck up. Don't worry - I'll take care of that problem on my end since I suspect you have a serious deficiency in following instructions.

              1. Well, I'm glad that the lady they trampled with the horse didn't die, (Not that I'd heard anybody claim that she had.) but it doesn't change the fact that the Mounties DID trample her.

                1. Let's assume that it's true.

                  1) She took part in an illegal protest.
                  2) They were warned days in advance to leave, or the police would be coming in.
                  3) She still refused to leave.
                  4) Her age is irrelevant.
                  5) Her mobility status is irrelevant.
                  6) Don't stand in front a moving police horse when you've been told that your behavior is criminal and that you are required to disperse.

                  Enough with the appeal to emotion fallacies. It's ironic that the "Back the Blue" party is full of people who think that it's ok to ignore lawful orders to disperse and then pretend that the police are in the wrong. I guess you guys only support the police when they're enforcing the law against people who don't identify as RWNJs.

  22. Mehta is an Indian appointed by Obama. Enough said.

    1. Indeed - you're a racist. Adios asshole.

      1. You realize that these people hate you, too, don't you? Liberal whites like you are useful idiots.

  23. I keep reading things like, "I am unpersuaded that Trump did this, because it would rationally not be good for him." People are not entirely rational. Donald Trump has been a full on nut case all of his life. The line in the question at hand is very, & consistently clear when you look at the entirety of everything that was said by Trump & his supporters from before the election, in response to the election, and in regard to protests on Jan. 6. They knew the violent militia guys were coming. So did lots of agencies monitoring them. Playing make believe & not looking past the specific words for what is actually going on is a mistake. That keeps being made.

  24. I didn't hear Trump's 1/6 speech until AFTER the Capitol Riot, when I found it on Youtube. It was endless! I've heard for years about what a great speaker Trump is, and maybe he is, usually, but this one was BORING. It was endless. I can't imagine any listener to it saying, when it was finally over: Yeah, let's go overthrow the Government. I'd have said, Let's go get a drink.
    It was so LONG though, that it is easy to pick out pieces of it to criticize.
    And that's the real problem. If bringing a CIVIL suit allows political opponents to punish political views with which they disagree, subject only to a "more likely than not" civil standard, rather than a 5th amendment free speeach defense, that's a real threat to our political system.
    Sure, if Trump had used (or tried to use) violence or other unlawful means to prevent Biden from being innaugurated, that would have been a terrible imposition on our constitutional democracy. And I'd be on the barricades against that. But he didn't, and the claim that he tried to do so is, at least so far, unproved.

  25. LOL - Obama appointee in the DC Circuit. Opinion discarded. I hope Trump appeals all the way to SCOTUS.

  26. "Fight like hell," in the trial court's view, met the Brandenburg standard for incitement.
    It will be difficult to pursue interlocutory relief, but it can be hoped it will be pursued nonetheless.
    If the thinking expressed by the court stands, the opinion will represent a retrenchment from settled law.
    I do hope Trump will "fight like hell" to prevail on appeal, or even on further review.
    There are many other issues with the opinion -- and a few high points as well -- but the speech finding is particularly dangerous to law that has been undisturbed for decades.

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