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What Constitutes Incitement?

To be charged in a court of law, you have to have actually done something, not merely failed to do something.

As we move on from the January 6 anniversary, two truths, a question, and a problem about incitement.

One truth is the 2020 campaign never really ended. On paper Joe Biden became president and Donald Trump became a real estate developer again, but in reality Biden is simply a placeholder and Trump an active candidate for the presidency in 2024. Trump is running against himself, or rather the image of him people hold.

A second truth is in the law, unlike in propaganda/journalism, words have very precise meanings. Terms like assault, for example are well-defined by decades of case law. You can write junk about “verbal microaggressive assault” but that’s just for the rubes; don’t expect the case to make it to court. The same for terms like incitement.

The question is: After five years of failed, false accusations against Trump (Russiagate on down), how valid of an election strategy is it to twist vernacular definitions into quasi-legal ones? After so many instances of crying wolf (walls closing in, tick tock, etc.), will doing it all again, over and over again, about the events of January 6, actually win votes for the Democratic candidate, or will voters finally realize the Emperor’s arguments about Trump have no clothes on and just stop listening?

The problem is the Dems can’t win on what they have to offer. Most of their domestic agenda promises are shot. They are likely to lose Roe, and will accomplish little on immigration other than to not enforce the law on the southern border. Even if Mother Nature casts a vote and cleans up Covid somehow, it will be difficult for Democrats to take much credit after so many mistakes. They have no clear plan for un-futzing the economy most voters live in and any progress made will be seen as catch-up at best. Tearing down statues and appointing transpeople only goes so far.

Their sole strategy for 2024 is to make people believe Trump tried to overturn the last election on January 6, and having failed, chose the odd path of re-embracing the electoral process and running for president again so as to destroy democracy once in office (i.e., Orange Man Really Bad.) It’s a tough ask.

The propaganda/journalism mandarins have failed to sway many minds. To succeed will require something real, an actual court finding Trump actually guilty of an actual crime that meets the expectations set after flinging around words like treason and sedition for a year. Some goofy tax problem in a New York state court or empty process crime like “co-conspiracy to…” which dragged along the Russiagate mess, will not be enough.

Problem One is there was no coup. Presided over by Trump non-accomplice Mike Pence, Congress did its job. Biden took office. Trump went home. The rioters went home. The system in fact worked and produced the constitutionally expected results.

After a year of effort, none of the hundreds of January 6 prosecutions have been for anything close to sedition or treason, mostly just fluffy versions of trespassing. None of the rioters claimed they acted on orders from Trump, Don Jr. or the Pillow Guy. Despite all the over-blown PowerPoints, there was no realistic path toward a coup taking place. There is a very high bar to climb over to prove something serious like treason. You need a fire to prove arson. The smoking gun can’t have been loaded with blanks.

So the Dems and media are left with some lawyering to do, in their minds the equivalent of taking down Al Capone on tax violations. (That worked because Capone really did fail to pay taxes.) Thus, the focus ends up on the one thing Trump actually did do on January 6, speak at the Stop the Steal rally. Dems argue his words constitute incitement. You can reread them, but it would be more productive to spend some time learning what actually is and is not incitement.

A democracy can’t lock up everyone who stirs up a crowd. Speech which inspires, motivates, or warms the blood cannot be illegal as it is the very stuff of democracy. Trump thought the election was unfair and had a Constitutional right to say so. Democracy could not exist if the law held every speaker responsible for whatever people who heard him talk did later. A finer line is needed.

The first try at restricting “dangerous speech” was Schenck v. United States, which produced the misunderstood line about not shouting “Fire!” in a crowded theater. It would be for the later case of Brandenburg v. Ohio to refine the modern standard for restricting speech. It tightened the criteria to 1) the speech explicitly or implicitly encourages the use of violence or lawless action; 2) the speaker intends their speech will result in the use of violence or lawless action, and 3) imminent violence or lawless action is the likely result of the speech. Brandenburg is the Supreme Court’s gold standard on what government may do about speech that seeks to incite others to lawless action.

The key to Brandenburg is intent. You have to prove, not just speculate, the speaker wanted to cause violence. A hostile reaction of a crowd does not automatically transform protected speech into incitement. Listeners’ reaction to speech is thus not alone a basis for regulation, or for taking action against a speaker. The speaker had to clearly want to cause some specific illegal act. You need to prove Trump wanted the crowd to attack the Capitol (he instead tells them to walk there and cheer on the legislators “who do the right thing” and “to peacefully and patriotically make your voices heard”) and set out to find the words to make that happen.

But Trump must have known how the angry crowd would react to his code words, right? Doesn’t matter. In the 1982 Claiborne v. NAACP the Court ruled civil rights leaders were not responsible for a crowd which, after hearing them speak, burned down a white man’s store. The state’s argument, rejected by the Court, was that no matter how they disguised their dog whistles, the leaders just knew their inflammatory rhetoric would drive the crowd to violence. Nope, said the Court, the standard is simple, the actual words spoken, not what the crowd did.

The law is similar for sedition, seeking to overthrow the government by force. This is intimately tied to the concept of free speech in that any true attempt at illegal overthrow, as well as any legitimate criticism of the government, will both include persuasion and stirring up crowds. The line between criticizing the government and organizing for it to be overthrown is a critical juncture in a democracy.

The law requires the government prove someone conspired to use force to overthrow the government. Simply advocating broadly for the use of violence is not the same thing as violence and in most cases is protected as free speech. That’s why no one from January 6 has been or will be charged with sedition or treason or anything similar. For example, suggesting the need for revolution “by any means necessary” is unlikely to be seen as conspiracy to overthrow the government by force. Actively planning such an action (distributing guns, working out the logistics, etc.) could be considered sedition. But that’s not what happened with Trump on January 6.

Most of the rest of the guff around Trump and January 6 is even emptier of substance, things like “giving aid or comfort” to those committing sedition, conspiracy to forcibly “prevent, hinder or delay the execution of any law of the United States,” or to corruptly impede any official proceeding. The Dems’ focus in this sphere is on what Trump did not do to stop the riot, particularly his taking three hours to issue a video request for the rioters to go home. The over-arching problem is that crimes generally require you to do something. Not doing things, or not doing them fast enough to the Dems satisfaction, is hardly a chargeable crime.

The clearest sign there is nothing real behind the exaggerated claims surrounding January 6 is that after a postmortem impeachment, a full year passing, and hundreds of low-level prosecutions, nothing much has been proven. As with Russiagate, the more time that passes with nothing but media-generated smoke, the less likely there is anything more. There is certainly room to judge Trump’s actions on January 6. But that judgment must come from the voters, not a kangaroo court, if you want to talk about preserving the rule of law.

Peter Van Buren is the author of We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People, Hooper’s War: A Novel of WWII Japan, and Ghosts of Tom Joad: A Story of the 99 Percent.



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