Did statements by President
Trump calling on his supporters to march to the Capitol violate federal laws
against incitement to violence, rioting, or advocating overthrow of the
government?
Whether this question is answered in the affirmative or
negative, the actions that occurred inside the Capitol building were egregious
and completely inconsistent with the rule of law. As was stated by General Mark
Miley and the entire Joint Chiefs of Staff, “the rights of freedom of speech
and assembly do not give anyone the right to resort to violence, sedition, and
insurrection." The participants must be held accountable and prosecuted to
the fullest extent of the law.
Below is a basic, general analysis of the law as it pertains to inciting a riot [insurrection]. It is not intended to support any position. This topic is complicated and there are many issues that could affect the outcome. These issues are beyond the scope of this analysis.
What were the statements made by President Trump during his
speech and rally on January 6, 2021 that were alleged to gave rise to the violation
of law?
The full transcript of President Trump’s speech is available
online. https://www.rev.com/blog/transcripts/donald-trump-speech-save-america-rally-transcript-january-6
Some examples of his statements include that the “election
victory stolen by emboldened radical left Democrats, which is what they’re
doing and stolen by the fake news media.” He added, “That’s what they’ve done
and what they’re doing. We will never give up. We will never concede, it
doesn’t happen. You don’t concede when there’s theft involved.”
President Trump also criticized the news media several
times stating “our media is not free. It’s not fair,” he said. “It suppresses
thought. It suppresses speech, and it’s become the enemy of the people. It’s
become the enemy of the people. It’s the biggest problem we have in this
country. No third world countries would even attempt to do what we caught them
doing and you’ll hear about that in just a few minutes.” Later, President Trump
added, “No, we have a corrupt media. They’ve gone silent. They’ve gone dead.”
In his speech, President Trump also included calls to
action geared towards his supporters. At one point, he said, “We’re going to
have to fight much harder and Mike Pence is going to have to come through for
us. If he doesn’t, that will be a sad day for our country because you’re sworn
to uphold our constitution. Now it is up to Congress to confront this egregious
assault on our democracy. After this, we’re going to walk down and I’ll be
there with you. We’re going to walk down. We’re going to walk down any one you
want, but I think right here. We’re going walk down to the Capitol, and we’re
going to cheer on our brave senators, and congressmen and women. We’re probably
not going to be cheering so much for some of them because you’ll never take
back our country with weakness. You have to show strength, and you have to be
strong.”
At the end of his speech, President Trump told those at the
rally, “[W]e’re going to, we’re going to walk down Pennsylvania Avenue, I love
Pennsylvania Avenue, and we’re going to the Capitol and we’re going to try and
give” before trailing off and stating, “The Democrats are hopeless.” President
Trump repeated, “So let’s walk down Pennsylvania Avenue. I want to thank you
all.”
The chaos in the U.S. Capitol unfolded after President Trump spent weeks alleging fraud in the Nov. 3 election, culminating in a call to march to the building.
Does the First Amendment protect Trump on Incitement to
Riot [Insurrection} allegations?”
Most people will agree the Trump’s speech was imprudent,
rash, offensive, and perhaps even repugnant. But did his comments constitute “incitement
to imminent lawless action”?
In addition to his rally speech as referenced above, Trump has made many other statements and taken actions, prior to and post-riot, that could be considered when determining whether he violated incitement of riot statutes. The issue of whether these statements and actions can or will be considered and to what extent, is a relevant and possibly a pivotal one, but it is beyond the scope of this analysis.
Moreover, some scholars believe that the legal standard explained below does not apply to an impeachment trial of a President who is charged with high crimes and misdemeanors under the Constitution. This issue is likewise beyond the scope of the analysis made herein.
The law regarding “Incitement to Riot"
In Brandenburg v. Ohio, 395 US 444 (1969), the US
Supreme Court established the “incitement test,” which includes two steps for
speech to fall under this category of unprotected speech.
First, the speech needs to be “directed to inciting or
producing imminent lawless action.”
Second, the speech must be “likely to incite or produce
such action.”
The primary holding of Brandenburg v. Ohio, 395 US
444 (1969) was that speech that supports law-breaking or violence in general is
protected by the First Amendment unless it directly encourages people to
take an unlawful action immediately.
In Brandenburg, a Ku Klux Klan leader in Ohio,
Clarence Brandenburg, asked a Cincinnati reporter to cover a KKK rally in
Hamilton County for his television station. The resulting footage captured
people burning a cross and making speeches while clad in the usual KKK attire
of hooded robes. The speeches mentioned taking revenge on African-Americans as
well as Jews, potentially by marching on Washington on the Fourth of July. They
also criticized the President, the Congress, and the Supreme Court for
allegedly colluding with non-whites against whites. Brandenburg’s speech was as
follows:
"This is an
organizers' meeting. We have had quite a few members here today which are—we
have hundreds, hundreds of members throughout the State of Ohio. I can quote
from a newspaper clipping from the Columbus, Ohio Dispatch, five weeks ago
Sunday morning. The Klan has more members in the State of Ohio than does any
other organization. We're not a revengent organization, but if our President,
our Congress, our Supreme Court, continues to suppress the white, Caucasian
race, it's possible that there might have to be some revengeance taken.
"We are
marching on Congress July the Fourth, four hundred thousand strong. From there
we are dividing into two groups, one group to march on St. Augustine, Florida,
the other group to march into Mississippi. Thank you."
Once this footage became public, Ohio authorities charged
Brandenburg with advocating violence under a criminal syndicalism statute. Brandenburg
was convicted and sentenced to one to 10 years in prison, as well as a fine.
His conviction was affirmed by a state appellate court.
On appeal, the Supreme Court reversed the lower courts stating,
“later decisions have fashioned the principle 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. As was stated in Noto v. United States,
367 U. S. 290, 297-298 (1961), "the mere abstract teaching . . . of the
moral propriety or even moral necessity for a resort to force and violence, is
not the same as preparing a group for violent action and steeling it to such
action." See also Herndon v. Lowry, 301 U. S. 242, 259-261 (1937); Bond
v. Floyd, 385 U. S. 116, 134 (1966).
Moving beyond the clear and present danger test articulated
by Justice Holmes in Schenck v. U.S. (1919), the opinion proposed an
imminent lawless action test for political speech that seems to advocate
overthrowing the government. It ruled that the government cannot forbid this
type of speech unless it is both directed to inciting such action and is
likely to actually incite it. By contrast, simply advocating a viewpoint
without encouraging people to act on it, or encouraging people to act in a way
that they could not be expected to act, would be protected by the First
Amendment.
For speech to constitute incitement, it must advocate for
illegal action immediately to take place. Hess v. Indiana, 414 US
105 (1973).
Hess v. Indiana, 414 U.S. 105 (1973) was a United
States Supreme Court case involving the First Amendment that reaffirmed and
clarified the imminent lawless action test first articulated in Brandenburg
v. Ohio. The case involved an antiwar protest on the campus of Indiana
University Bloomington. Between 100 and 150 protesters were in the streets. The
sheriff and his deputies then proceeded to clear the streets of the protestors.
As the sheriff was passing Gregory Hess, one of the members of the crowd, Hess
uttered, "We'll take the fu%king street later" or "We'll take
the fu%king street again." Hess was convicted in Indiana state court of disorderly
conduct. The Supreme Court reversed
Hess's conviction because the statement, at worst, "amounted to nothing
more than advocacy of illegal action at some indefinite future time. This is
not sufficient to permit the State to punish Hess' speech."
A more recent case that dealt with whether certain facts
and circumstances gave rise to “inciting a riot” was Nwanguma v. Trump,
903 F.3d 604 (6th Cir. 2018). In this case, the US Court of Appeals for the
Sixth Circuit held that then-Republican presidential candidate Trump did not
“incite a riot” when he called for security to remove protestors at a March
2016 rally, which led to an altercation between the protesters and some of
Trump’s supporters.” The Sixth Circuit held that the United States has “chosen
to protect unrefined, disagreeable, and even hurtful speech to ensure that we
do not stifle public debate.”
The court added that the case law derived from the Brandenburg
test “makes clear . . . that, even if plaintiffs’ allegations could be deemed
to make out a plausible claim for incitement to riot under Kentucky law, the
First Amendment would not permit prosecution of the claim.. . . [The] speaker’s
intent to encourage violence . . . and the tendency of his statement to result
in violence . . . are not enough to forfeit First Amendment protection unless
the words used specifically advocated the use of violence, whether
explicitly or implicitly.”
Did President Trump advocate the use of violence? Were his words directed to cause imminent
violence?
Legal scholars answer these questions differently. Reviewing the transcript, however, President Trump did not appear to ever explicitly
call for violence during his rally and he never used a command like ‘go down
there and attack them”. Are his words therefore protected? Some experts will argue that Trump’s words are protected speech and others will argue that they are not.
There is clearly a difference
between heated political rhetoric and actually directing one’s followers to
commit violence. Trump undeniably sent them off down the street with his words,
but did he send them off to commit violence?
The First Amendment of the United States Constitution protects
the right to freedom of religion and freedom of expression from government
interference. It prohibits any laws that establish a national religion, impede
the free exercise of religion, abridge the freedom of speech, infringe upon the
freedom of the press, interfere with the right to peaceably assemble, or
prohibit citizens from petitioning for a governmental redress of grievances.
The central commitment of the First Amendment, as
summarized in the opinion of the Court in New York Times Co. v. Sullivan,
376 U. S. 254, 270 (1964), is that "debate on public issues should be
uninhibited, robust, and wide-open." The Court in Bond v, Floyd, 385
U.S. 116 (1966), stated, “just as erroneous statements must be protected to
give freedom of expression the breathing space it needs to survive, so
statements criticizing public policy and the implementation of it must be
similarly protected. The State argues that the New York Times principle
should not be extended to statements by a legislator because the policy of
encouraging free debate about governmental operations only applies to the
citizen-critic of his government. We find no support for this distinction in
the New York Times case or in any other decision of this Court. The
interest of the public in hearing all sides of a public issue is hardly
advanced by extending more protection to citizen-critics than to legislators.
Legislators have an obligation to take positions on controversial political
questions so that their constituents can be fully informed by them, and be
better able to assess their qualifications for office; also so they may be
represented in governmental debates by the person they have elected to
represent them.”
Below are excerpts from New York Times v. Sullivan, 376 U.S.
254 (1964).
The general proposition that freedom of expression upon
public questions is secured by the First Amendment has long been settled by our
decisions. The constitutional safeguard, we have said, "was fashioned to assure
unfettered interchange of ideas for the bringing about of political and social
changes desired by the people." Roth v. United States, 354 U. S.
476, 484. "The maintenance of the opportunity for free political
discussion to the end that government may be responsive to the will of the
people and that changes may be obtained by lawful means, an opportunity
essential to the security of the Republic, is a fundamental principle of our
constitutional system." Stromberg v. California, 283 U. S. 359,
369. "[I]t is a prized American privilege to speak one's mind, although
not always with perfect good taste, on all public institutions," Bridges
v. California, 314 U. S. 252, 270, and this opportunity is to be afforded
for "vigorous advocacy" no less than "abstract discussion."
N. A. A. C. P. v. Button, 371 U. S. 415, 429. The First Amendment, said
Judge Learned Hand, "presupposes that right conclusions are more likely to
be gathered out of a multitude of tongues, than through any kind of
authoritative selection. To many this is, and always will be, folly; but we
have staked upon it our all." United States v. Associated Press, 52
F. Supp. 362, 372 (D. C. S. D. N. Y. 1943).
Mr. Justice Brandeis, in his concurring opinion in Whitney
v. California, 274 U. S. 357, 375-376, gave the principle its classic
formulation: "Those who won our independence believed . . . that public
discussion is a political duty; and that this should be a fundamental principle
of the American government. They recognized the risks to which all human
institutions are subject. But they knew that order cannot be secured merely
through fear of punishment for its infraction; that it is hazardous to
discourage thought, hope and imagination; that fear breeds repression; that
repression breeds hate; that hate menaces stable government; that the path of
safety lies in the opportunity to discuss freely supposed grievances and
proposed remedies; and that the fitting remedy for evil counsels is good ones.
Believing in the power of reason as applied through public discussion, they
eschewed silence coerced by law—the argument of force in its worst form.
Recognizing the occasional tyrannies of governing majorities, they amended the
Constitution so that free speech and assembly should be guaranteed."
There is a profound national commitment to the principle
that debate on public issues should be uninhibited, robust, and wide-open, and
that it may well include vehement, caustic, and sometimes unpleasantly sharp
attacks on government and public officials. See Terminiello v. Chicago,
337 U. S. 1, 4; De Jonge v. Oregon, 299 U. S. 353, 365.
Authoritative interpretations of the First Amendment
guarantees have consistently refused to recognize an exception for any test of
truth—whether administered by judges, juries, or administrative officials—and
especially one that puts the burden of proving truth on the speaker. Cf. Speiser
v. Randall, 357 U. S. 513, 525-526. The constitutional protection does not
turn upon "the truth, popularity, or social utility of the ideas and
beliefs which are offered." N. A. A. C. P. v. Button, 371 U. S.
415, 445. As Madison said, "Some degree of abuse is inseparable from the
proper use of every thing; and in no instance is this more true than in that of
the press." In Cantwell v. Connecticut, 310 U. S. 296, 310, the
Court declared:
"In the realm of religious faith, and in that of
political belief, sharp differences arise. In both fields the tenets of one man
may seem the rankest error to his neighbor. To persuade others to his own point
of view, the pleader, as we know, at times, resorts to exaggeration, to
vilification of men who have been, or are, prominent in church or state, and
even to false statement. But the people of this nation have ordained in the
light of history, that, in spite of the probability of excesses and abuses,
these liberties are, in the long view, essential to enlightened opinion and
right conduct on the part of the citizens of a democracy."
Objections to electoral vote certifications and allegations of election fraud are not unusual and raising these issues are not in and of themselves improper. Both these issues appear to have been at least a partial impetus to the protests and riot.
President Trump’s electoral vote
certification, held in Congress on Jan. 6, 2017 with then Vice President Joe
Biden presiding, was interrupted numerous times by members of Congress. Similar to what occurred this
week, during the course of the electoral vote certification in 2017, House
Democrats tried to object to electoral votes from multiples states. Objections
to the votes needed to be in writing and signed by both a member of the House
and a member of the Senate. Every House member who rose to object did so
without a senator’s signature.
1.)Rep.
Jim McGovern of Massachusetts rose to object to the certificate from Alabama. “The
electors were not lawfully certified, especially given the confirmed and
illegal activities engaged by the government of Russia,” McGovern said.
2.) Rep.
Jamie Raskin of Maryland rose to object to 10 of Florida’s 29 electoral votes. “They
violated Florida’s prohibition against dual office holders,” Raskin said.
3.) Washington’s
Rep. Pramila Jayapal objected to Georgia’s vote certificate.
4.) Rep.
Barbara Lee of California brought up voting machines and Russian hacking when
she objected following the counting of Michigan’s votes. “People are horrified
by the overwhelming evidence of Russian interference in our election,” Lee said.
5.) After
New York’s tally was read, Rep. Sheila Jackson Lee of Texas stood up to object.
“I object on the massive voter suppression that included –” Jackson Lee began.
6.) Arizona’s
Rep. Raul Grijalva rose to object after North Carolina’s tally. He tried to
object on violations of the Voting Rights Act, but Biden shut him down.
7.) Once
he gave up, Jackson Lee tagged him out and tried to object to the votes
herself. They cut off her microphone, too.
8.) Jackson
Lee made another appearance minutes later after South Carolina’s certification.
9.) After
Wisconsin’s votes had been read Jackson Lee once again tried to make an
objection on the grounds of Russian interference in the election.
10.) Then
entered California Rep. Maxine Waters. Taking
a play from her own book – she objected to the certification of George W.
Bush’s 2000 election – Waters admitted that she didn’t have a senator’s
signature on her objection. “I wish to ask: Is there one United States senator
who will join me in this letter of objection?” Waters asked.
11.) The states
were counted, but three protestors started yelling from the visitors’ gallery
of the chamber. At least one of them was reciting the Constitution as he was
taken away by security.
The issue of alleged election fraud has been raised by both political parties. As
late as October 2020, Hillary Clinton has continued to hold that the
2016 presidential election was not conducted legitimately, saying the details
surrounding her loss are still unclear. “There
was a widespread understanding that this election [in 2016] was not on the
level.” Clinton said during an interview for the latest episode of The
Atlantic’s politics podcast, The Ticket. “We still don’t know what really
happened.” “There’s just a lot that I think will be revealed. History will
discover.”
Only time will tell whether President Trump will be found to have incited a riot/insurrection. This analysis was written prior to criminal charges or articles of impeachment being filed and therefore the applicability of the law stated above is subject to change, modification or extension. Accordingly, Trump’s speech could possibly be defensible in court but not in the Senate.
