As a constitutional law professor for 30 years, I have been teaching law students and undergraduates that while the First Amendment protects abstract appeals for illegal actions or even highly offensive expression, there can and should be criminal liability for speech that incites the likely and imminent risk of violence. To borrow a famed First Amendment concept, when it comes to President Donald Trump’s rambling, exhortative speech at the Mall to his followers, I know criminal incitement when I see it.
The Events of January 6
Notwithstanding the post-January 6 revisionist efforts to the contrary, the facts compellingly show that Trump groomed, agitated and then incited his followers to commit horrific acts of violence, including foreseeably causing irreparable damage to the Capitol and governmental institutions. The build-up to and the actual litany of his inflammatory battle cries to violence have been widely reported.
Trump’s design to whip up hysteria was long in the making. The latest iteration started with express requests that his followers come to Washington, D.C. on January 6, 2021 for a “big protest” premised on the false claim that the election was stolen. His now-famous December 19 tweet emphasized a desire for the day’s events to go beyond a rally and speechifying: “Be there, will be wild!”
In the days leading up to the attack on the Capitol, Trump continued with his incitement campaign by making it clear, in a Tweet on January 5, that he and his followers “[wouldn’t] stand for a landslide election victory to be stolen.” He intoned that they simply weren’t going to allow the Democrats and weak Republicans to silence their voices and that the upcoming gathering was going to be a march “to Save America” and to block Joe Biden’s ascension to the presidency.
When his followers did show up on the Mall in large numbers on January 6, 2021, Trump repeatedly used the language of criminal incitement to imminent lawlessness. Stoking the false flames of a “stolen election” and “an illegitimate president,” Trump exhorted his followers that they must “fight,” “stop the steal,” and declared, “We will never give up, we will never concede. It doesn’t happen. You don’t concede when there’s theft involved.”
Trump’s call to immediate action was clear and unequivocal: “And we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.” He yelled that the crowd must “fight harder” and not be like the Republicans who in his words are “constantly fighting like a boxer with his hands tied behind his back.”
Much akin to the proscription articulated by Justice Oliver Wendell Holmes on falsely yelling fire in a crowded theater, Trump then called for action based on the imagined necessity of stopping the “emboldened radical Democrats” from stealing “their” election victory, a theft achieved through what he called a “criminal enterprise.” He urged the large crowd – “warriors” and “patriots,” as he called them – to march up the National Mall to the Capitol in order to “give our Republicans the kind of pride and boldness that they need to take back our country.”
There was nothing very subtle or abstract about the president’s rhetoric. The incensed crowd members needed to “show strength” because you can “never take back our country with weakness.” Trump thus underscored the theme espoused moments earlier by his enabler lawyer Rudy Giuliani that it was time to have “trial by combat.”
As Trump spoke of “fighting like hell,” rioters had already begun to clash with police at the Capitol. As he concluded, Trump repeated his call to march on the Capitol – and the crowd obliged.
The First Amendment and Incitement
There is little doubt in my professorial view that such actions come within the ambit of the federal criminal statutes on sedition and incitement to riot. As to sedition, the federal statutes make it a crime for anyone to incite or assist in any acts of insurrection against the authority of the United States, or to conspire to put down the government or hinder or delay the execution of any of its laws.
Similarly, as to inciting riots, it is a crime for someone to urge or instigate other persons to riot, excluding, of course, mere abstract advocacy of the right to commit such acts. When, as here, incitement of such activities was perpetrated through telephone calls, interstate travel, or other interstate means, federal criminal liability follows. It may also follow directly from DC law, as the Attorney General of the District of Columbia recently remarked.
Let’s be clear: First Amendment protections have never been interpreted to prohibit punishment of expression that threatens to materially disrupt the safe functioning of government or incitement of others to commit acts of violence or other illegal acts. If such speech is directed toward actually inciting such illegal conduct and the advised conduct is imminent or immediate, the speech can be punished.
When it comes to “free speech” and the advocacy of illegal conduct and crimes, society does not need to wait until the exhorted activity takes place to have an interest in punishing those whose objective it is to incite the commission of crimes and acts of violence. Analogously, one who lights the fuse to a bomb can be punished without waiting for the bomb itself to go off.
Importantly, and as I have taught my constitutional law students for decades, the challenge is how close the relationship must be between “mere abstract advocacy” and the likelihood that the exhortation will actually work. For certainly, there is a difference between sedition and peaceful protest. The issue, as framed by constitutional scholar Erwin Chemerinsky is: “How should society balance its need for social order against its desire to protect freedom of speech?”
From wartime restrictions to times of national fear mongering, the Supreme Court has struggled with whether, and to what extent, speech on highly charged political subjects aimed at exhorting others to commit unlawful acts is protected by the First Amendment. But with some consistency in recent decades, the Court has ruled that in addressing such issues, judges and juries must consider the degree of evil advocated, discounted by its improbability – thus allowing punishment of speech only in the least restrictive manner.
In the oft-cited Brandenburg v. Ohio decision in 1969, the high court famously explicated its longstanding “clear and present danger” requirement when it ruled that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
There, Brandenburg was a Klu Klux Klan leader who, in a televised speech at a rally, exclaimed, “if our President, or Congress, or Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance (sic) to take.” The Supreme Court reversed his conviction under the Ohio Criminal Syndicalism statute, reasoning that the requested action was neither imminent nor likely under the circumstances.
In 1973’s Hess v. Indiana, the Court examined constitutional protection for an antiwar demonstrator who, after being moved to the curb following the protestor’s attempt to block traffic on a public street near Indiana University, said to a nearby sheriff officer: “We’ll take the f—— street again.” In reversing the demonstrator’s conviction for disorderly conduct, the Supreme Court cited Brandenburg and stated: “At worst, [the words] amounted to nothing more than advocacy of illegal action at some indefinite future time.”
Requiring some modicum of likely success has allowed the Court to formulate protections for speech that is incendiary…but not too incendiary. In NAACP v. Claiborne Hardware Co. in 1982, for example, the Court overturned a judgment against the NAACP for a boycott of white-owned businesses that were engaging in racial discrimination. The lower court had based damages liability on a speech by an NAACP official that included the statement, “If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.” The court held this speech was protected as “mere advocacy” and not an imminent call for the use of force or violence.
Striking the Balance
These cases show, as I have taught for so many years and to so many students, that it is a delicate line between lawful criticism and exhortation on the one hand, and illegal incitement to acts of violence, insurrection or interference with governmental affairs on the other. At bottom, the Court has made plain that an individual can be convicted for incitement only if it is proven that, under the particular circumstances of the case, there was a likelihood of imminent illegal conduct and the speech was directed at causing that very imminent misconduct.
No doubt we should not, in our consideration of Trump’s speech, establish a criminal standard that punishes speech of protest merely because we find it offensive or because it advocates strong political action. But Trump’s speech was calculated to – and did – spark the effort to forcibly stop Congress that followed immediately as advocated. And the evil was indeed great as those he incited stormed the Capitol with the clear intent to disrupt or stop elected officials from carrying out their constitutional duties.
My students will understand the drawing of lines for restricting or permitting criminal accountability: political protesters – even those who use incendiary and offensive rhetoric without risking imminent violence – are to be protected under the Constitution. Donald Trump’s and Rudy Giuliani’s exhortations to violent disruption are not.
Postscript: Political Liability Beyond Criminal Incitement
While I write here of the absence of constitutional protection for Trump’s acts of criminal incitement, it is important to distinguish this analysis from his political liabilities. Foremost is whether, for impeachment purposes, his appeals to the crowd even need rise to the level of actual criminal incitement to qualify as an impeachable act of “other high Crimes or Misdemeanors.” For it was no one less than Gerald Ford who said that “an impeachable offense is whatever a majority of the House of Representatives considers it to be.”
It seems to me, given that the Supreme Court has underscored that impeachment is a non-judiciable political question and most of the protections of the criminal law do not confine the impeachment process, Congress has the power to remove a President and preclude future office-holding resting upon a gestalt conclusion that such person has engaged in deeply improper conduct harmful to the Nation. For example, one of the articles of impeachment as to Richard Nixon was for using government agencies, such as the FBI and the IRS, for political advantage.
Perhaps similarly, the Fourteenth Amendment prohibits the holding of a governmental office for anyone who took the oath to support the Constitution and later “engaged in insurrection or rebellion” or gave “aid or comfort to the enemies” of this country. Plainly, this prohibition is less exacting than the standards for criminal incitement as it requires only the engagement with or moral support of those who violently resist the authority of our nation.
And finally, speech by public employees clearly is less protected overall than other speech – even if that speech is not criminal. Established case law holds that public employees can be fired for speech that hinders efficient operation of their governmental department. So, for example, if a Chief of Police (or president) makes hugely and explicitly racist statements, they can be removed from office. And if, let’s say, Trump on the morning after the attack started singing the praises of the insurrectionists, there is little doubt that such “speech” could be sanctioned through removal or impeachment.