The Hill’s Today’s Deal:
Trump lawyers claimed that Trump’s language could not be distinguished from many Democrats, such as Rep. Maxine water (D-Calif.), Mehta chided them for playing “a game of what-aboutism.”
This “what-aboutism”, however, is the exact point. It is this very thing that is intended to be prevented by the First Amendment.
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, he said that “There should be unrest on the streets as long as we have unrest in our lives.”
These statements were arguably reckless, but they are clearly protected speech.
Free speech demands bright lines. While this is a “one-of-a-kind case,” Trump’s comments were hardly unique….
The court would probably only apply to cases where certain people appear already to have gathered or are ready to engage in imminent criminal conduct. This might exclude the Clinton and Pressley situations. However, it could be used to cover the Waters case (in person or electronically) and other similar cases.
Here is my opinion.