By: Hannah Simmons, Staff Member, Vol. 19<\/p>\n\n\n\n
On February 13, 2021, former President Donald Trump was acquitted<\/a> of the impeachment charge alleging that he incited the United States Capitol riots. Even though the Senate did not reach the two-thirds majority needed to convict Trump for his role in inciting the mob to attack the capitol, this does not mean that Trump is not guilty.<\/p>\n\n\n\n The Senate\u2019s decision has ignited powerful responses from both sides of the political spectrum. Representative Jamie Raskin, who leads the House impeachment managers, stated<\/a> that the \u201cdefinition of proscribable speech [set out in Brandenburg v. Ohio] fits [former] President Trump\u2019s conduct perfectly,\u201d while those on the opposite side of the political spectrum disagreed. So which is it?<\/p>\n\n\n\n The Legal Test<\/em><\/strong><\/p>\n\n\n\n The legal definition of incitement had a huge effect on the Senate trial of former President Trump. In a 1969 case, Brandenburg v. Ohio<\/em><\/a>, <\/em>the Supreme Court set out a test that would be used for decades to determine whether an individual is guilty of incitement. For speech to violate the First Amendment the speech must be directed at inciting or producing imminent lawless action, and the speech must be likely to incite or produce such action.<\/p>\n\n\n\n The Supreme Court has rarely found defendants guilty of incitement based on this standard. The defendant in the Brandenburg <\/em>case, for example, was the leader of the Ku Klux Klan\u2019s Ohio branch. During a rally, Brandenburg stated that if the white race continues to be \u201csuppressed,\u201d \u201cthere might have to be some revengeance taken.\u201d The Supreme Court found that Brandenburg\u2019s statements did not rise to the level of incitement, because they merely advocated for violence but did not go as far as to prepare a group for violent action.<\/p>\n\n\n\n A few years later, in Hess v. Indiana<\/em><\/a>,the Supreme Court applied the Brandenburg<\/em> standard to an incitement charge against a protester who announced at a protest that they will \u201c\u2026take the f\u2014ing street again.\u201d The Supreme Court stated<\/a> that this speech was not incitement because it \u201camounted to nothing more than advocacy of illegal action at some indefinite future time,\u201d and because the defendant did not intend the speech to incite lawless action. The Hess <\/em>and Brandenburg <\/em>cases exemplify just how difficult it is to meet the incitement standard.<\/p>\n\n\n\n Trump\u2019s Speech<\/strong><\/p>\n\n\n\n Trump\u2019s speech near the capitol building was the focus of the incitement charge. Prior to the attack on the capitol, Trump encouraged voters to attend the event and named it a \u201cSave America March.\u201d At the event, Trump continued<\/a> to say that the election was stolen, and that he and his supporters \u201cwill not take it anymore\u201d and must \u201cstop the steal.\u201d<\/p>\n\n\n\n Trump complained to his supporters that \u201cRepublicans are constantly fighting like a boxer with his hands tied behind his back. It\u2019s like a boxer. . . . And we\u2019re going to have to fight much harder.\u201d Trump added<\/a> that \u201c[w]hen you catch somebody in a fraud, you\u2019re allowed to go by very different rules.\u201d<\/p>\n\n\n\n Although most of Trump\u2019s speech focused on calls to fight and show strength, Trump made the comment that \u201c[he knew] that everyone [. . . would] soon [. . . march] over to the Capitol building to peacefully and patriotically make [their] voices heard.\u201d Yet, he indicated<\/a> to his supporters that \u201c[they will] never take our country back with weakness.\u201d<\/p>\n\n\n\n In this blog post I will analyze whether Trump\u2019s speech constitutes incitement under the two-step Brandenburg <\/em>test. First, I will analyze whether Trump\u2019s speech was directed at inciting or producing imminent lawless action. Second, I will analyze whether Trump\u2019s speech was likely to incite or produce such action.<\/p>\n\n\n\n 1. Was Former President Trump\u2019s speech directed at inciting or producing imminent lawless action?<\/strong><\/p>\n\n\n\n Trump\u2019s statements must be directed at inciting or producing imminent lawless action to satisfy the first prong of the Brandenburg <\/em>test. Trump\u2019s call to his supporters to march over to the Capitol building was made directly to his supporters.<\/p>\n\n\n\n However, it is not abundantly clear from Trump\u2019s statements alone that he intended for illegal action to ensue because Trump did not explicitly say \u201cgo storm the Capitol.\u201d Trump instead used vague language that does not, on its own, constitute a call for lawless action. Much like the defendant in Hess<\/em>, Trump\u2019s speech does not seem to rise to the level required by the first prong of the test.<\/p>\n\n\n\n 2. Were Former President Trump\u2019s statements likely to incite or produce action?<\/strong><\/p>\n\n\n\n <\/strong>Trump\u2019s speech must also be likely to incite or produce such lawless action to be considered incitement under the Brandenburg <\/em>test. The fact that the speech was made near the Capitol building to a group of angry Trump supporters, who believe that the election was stolen, weighs heavily against Trump since these factors make it more likely that action would ensue. Many argue that Trump does not have a history of inciting violence; but this is not true. Just last year Trump\u2019s tweets about Governor Whitmer of Michigan lead a group<\/a> to plan to kidnap this same Governor.<\/p>\n\n\n\n Furthermore, many (if not most) of Trump\u2019s most-dedicated supporters truly believe that the election was stolen, making it even more likely that Trump\u2019s words would have incited action. Trump\u2019s claims that the election was stolen still lives on today<\/a>.<\/p>\n\n\n\n Conclusion<\/em><\/strong><\/p>\n\n\n\n Although Trump\u2019s statements seem to pass the second prong of the Brandenburg<\/em> test, it\u2019s unlikely that Trump could found guilty of incitement because his statements fail the first prong of the test. Despite the fact that Trump did seem to direct his supporters to storm the Capitol, it is not clear enough that Trump\u2019s statements were directed at inciting imminent lawless action or that Trump intended such a result based on his speech alone.<\/p>\n\n\n\n This is where the Brandenburg test often fails. A better test could require a lower level of intent if there is some evidence that the statements are highly likely to lead to the imminent lawless action, as they were in Trump\u2019s case.<\/p>\n","protected":false},"excerpt":{"rendered":" By: Hannah Simmons, Staff Member, Vol. 19 On February 13, 2021, former President Donald Trump was acquitted of the impeachment charge alleging that he incited the United States Capitol riots. Even though the Senate did not reach the two-thirds majority needed to convict Trump for his role in inciting the mob to attack the capitol, …<\/a><\/p>\n","protected":false},"author":10,"featured_media":3080,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[8],"tags":[45,133,152,182,187,190,349],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/3078"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/users\/10"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/comments?post=3078"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/3078\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/media\/3080"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/media?parent=3078"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/categories?post=3078"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/tags?post=3078"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}