Court in Civil Case Holds Trump’s Jan. 6 Speech Could Be Constitutionally Unprotected Incitement

Thompson v. TrumpPlaintiffs have filed lawsuits against President Trump Jr. and Rudy Giuliani for physical or psychological injuries sustained in the Capitol following the Jan 6th riot. Core claims were brought under federal law banning conspiracy “to stop, by force. intimidation. or threat, any individual from accepting or holding any office or trust under the United States of America, or from performing any duties related thereto.”

Judge Amit Metta concluded today that enough evidence existed to prove that President Trump was involved in this conspiracy. He also said that the First Amendment doesn’t protect him from civil liability under the First Amendment for conspiracy. This is because his speech of January 6 fell under the exception “incitement”. Brandenburg v. Ohio (1969). Speech is considered unprotected when it is directed at inciting or producing lawless activity and is likely or likely to inspire such action. The court does not discuss criminal charges. However, in criminal cases, the elements of incitement will presumably need to be proven beyond reasonable doubt. In civil cases, the preponderance likely suffices.

This is the Court’s Incitement Analysis. (There’s more information in the opinion which spans 112 pages about other aspects). I’ll then respond.

Although the President did not expressly encourage violence or lawlessness in his January 6th speech, it isn’t dispositive. You can read the entire article here Hess v. Indiana (1973), The Supreme Court recognized the power of words. Implicitly Incite violence or encourage lawlessness. The Court reversed Hess’s conviction and ruled that “no evidence” was presented. Reasonable inference From The import “language” that is likely or intended to cause imminent disorder. Consider the “importation of the language” and “rational deductions” that the words make, and you will see the Court declare there is no safe harbor 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….

The court has examined the President’s January 6 Rally Speech in full and its context. It concludes that statements made by the President, such as those that:[W]E fight. It’s a fight.[W]We’re going try and to give [weak Republicans]They need the courage and pride that we have to take back this country”, immediately prior to exhorting rallie-goers “walk down Pennsylvania Avenue.” These are words of incitement, which are not protected under the First Amendment. This is possible because those words impliedly were “directed at inciting or producing imminent legalless action. [were]Probably to cause such actions.”

It is important to consider the context within which the Speech was given and the “importance” of President’s words in relation to the Speech. Prior to January 6, the President and his associates had caused distrust among their supporters and created the false narrative that election was literally stolen by fraud or corruption. Some of his supporters turned their beliefs into action. Some of his supporters made threats to state election officials in the days following the election. Others clashed with Washington, D.C. police after pro-Trump rallies. These events were well-publicized and the President should have been aware. On January 6, the President invited his friends to Washington, D.C. The President must have been aware that his invite was viewed as an invitation to take action by some of his supporters. Trump’s advisors and he “actively monitor” pro-Trump social media and websites. In response to the rally’s announcement, these forums erupted. Some people called for violence in January 6, including “massive hangings and firing squads”. Other supporters took aim at the Certification (“Leave in one way or the other: Dead or certifying Trump to be the rightful victor”), or law enforcement (“Cops can’t stand if they’re laying down in a pool their own blood .”). The violent posts were mentioned “by media outlets frequently viewed by Trump, such as Fox News.” In order to make violence more likely, a former advisor to President Trump predicted that there would be violence “on January 6th” because he encourages violence.

It is therefore reasonable to conclude that the President knew that many in the audience were ready for violence when he stepped onto the stage on January 6. But, the President made a speech that only added to an already dangerous situation. For over 75 minutes, the President told rallie-goers that election was fraudulent and stolen. He even claimed that Third World Countries had better elections. He identified the perpetrators of election fraud as “radical Left Democrats”, “weak Republicans” These were the people who stole. They He assured them of his election victory. He told them not to be “conceive” and encouraged them to display “strength and strength.” They could not “take back.” [their]”Country with weakness.” He explained to them that rules didn’t apply. “When someone is caught in a fraud you can follow very different rules.” If the Vice President failed to act, they’d have an “illegitimate Presidency” and that “we cannot allow this to happen.” This sparked a fervent crowd that had known for many months about the alleged illegitimate President.

Election was stolen, and the president had been helped by “weak” politicians.

At the end of his speech, the President told the crowd: “We fight.” Just moments after telling them to march toward the Capitol, President Obama’s address seemed to cross the border into unprotected territory. This speech did not amount to anything.[]Nothing more than an illegal act at an indefinite future date.” President Trump’s words were, as Justice Douglas termed it, “speech … brigaded with action.” Brandenburg (Douglas, J., concurring). They could be “directed to inciting, or producing imminent lawless activity and [were]These actions are likely to inspire or cause such an action. Hess….

[T]He court [has]We have resisted any claims made by Plaintiffs about the reactions of any individual to President’s January 6 Rally Speech. (And Plaintiffs made such claims.) {“The court doesn’t take a position as to whether a listener may have had a subjective reaction.” 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]The President insists on the fact the President said when he mentioned marching towards the Capitol that he was expecting rally-goers to peacefully and patriotically “make your voices heard”. Those words are a factor favoring the President…. The President did not mention “peaceful” in his passing.[]Patriotic and[]” 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]Insisting on thousands of “fighting like hell”, he directed an unpermitted march towards the Capitol. There, the target of his ire was at work. Knowing that there were militia groups among the crowd, he called upon them to use 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….

John Stuart Mill (17th century English philosopher) was an ardent advocate for freedom of speech. Mill was aware that speech shouldn’t be restricted. Mill was a tireless worker. LibertyMill stated, “Noone pretends that actions are as free as thoughts.” But opinions are not immune from being expressed in circumstances that are positive for some malign act. Mill provided an example by offering the following:

A belief that corn-dealers starve the poor or that private property is theft should be considered unmolested if it’s simply distributed through the media. However, it could lead to punishment if delivered orally orally to an enthusiastic mob assembled in front of a corn dealer or if a placard was passed among the same mob.

Trump’s Jan 6 Rally Speech was similar to telling an exuberant mob of corn-dealers that the poor are being starved in front his corn-dealer home. After telling his supporters for many months that spineless and corrupt politicians were responsible for the theft of an election, he invited them to Washington, D.C. They are the best!; 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. According to Mill, the Speech was a “positive invitation of a malicious act,” It is unjustified to dismiss the claims of Plaintiffs based on First Amendment grounds.

My general thoughts: I believe that the Court has held incitement to be constitutionally protected. Therefore, if a speaker addresses a group of people at a location where they are likely to do harm it is possible for the Court’s “imminence element” of incitement. Recall that this exception applies to speech that “is”. [1]directed [i.e., intended]Inciting or producing [2]Imminent lawless actions and is [3]”

In terms of intent, I doubt Trump intended for the members to be criminally charged and not to protest lawfully. Such criminal activity was politically and practically detrimental to 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).

The bigger issue is not Trump’s, however. The twelve-month period ending January 6, 2021 showed that violence in politics is not limited to any one side or political dispute. If the case is ultimately accepted, any standard to uphold civil liability for such speech will be used far beyond the present case. This is especially true since the theory of the plaintiffs does not include speech by the president, speech about elections or speech that causes an attack on the Capitol. Also, speech that results from incorrect factual claims, expressions or opinions, and nothing that the plaintiffs claim to have been limited to, speech by the President. This is because the courts decided to apply the incitement exception, not the libel exemption.

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. These sentiments are echoed by elected leaders and help to encourage them.

Many people have gathered to support a leader at a rally. The majority of those in the crowd have not committed any violent acts or other illegal actions, however, some, as with many movements, do. And the leader is aware. His leader talks for long periods about all grievances shared by the audience.

[W]Fighting is a sport. Fighting like hell is what we do, and you won’t win if you don’t fight like hell. [justice / fairness / a planet]Continue reading

[W]I’m going to do my best to help you. [elected officials / police reformers / etc.]They will show the courage and pride necessary to take our country back.

After that, he urges them to march towards City Hall, a police station, and/or headquarters for an oil company. Some people, unsurprisingly, then proceed to enter the building or vandalize or set it ablaze or shoot at the police officers who are protecting it.

Maybe it is a positive thing that those who are physically and emotionally hurt by illegal conduct can sue the leader or prosecute him. Or perhaps it’s bad. My prediction is that Trump’s results will be quickly applied to many other speakers when there are illegal acts by attendees to a rally.