The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From today's item in The Hill:
When Trump's lawyers said his language was largely indistinguishable from that of many Democrats like Rep. Maxine Waters (D-Calif.), Mehta chided them for playing "a game of what-aboutism."
That "what-aboutism," however, is precisely the point. The selective imposition of liability for speech is the very thing that the First Amendment is designed to prevent.
As rioting raged in Brooklyn Center, Minn. and nationwide in 2020, Congresswoman Waters went to Minnesota and told protesters there that they "gotta stay on the street" and "get more confrontational." Others have used language very similar to Trump's in declaring elections to be invalid (including Hillary Clinton calling Trump an "illegitimate president") or urging supporters to "fight" or "battle" against Republicans; Rep. Ayanna Pressley (D-Mass.) once said, "There needs to be unrest in the streets for as long as there's unrest in our lives."
All of those statements arguably were reckless but clearly protected speech.
Free speech demands bright lines. While this is a "one-of-a-kind case," Trump's comments were hardly unique….
I think the court's decision would likely apply only to situations where some people already appear to be gathered and prepared to engage in imminent illegal conduct, so that might not include the Clinton and Pressley examples. But it might well cover a repeat of the Waters example (whether it's addressed to gathered crowds in person or remotely), and others like it.
For my take on the case, see here.