The Volokh Conspiracy
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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.
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.
