“TRUMP INCITES MOB” read the banner headline on the Jan. 7 New York Times the morning after a seditious crowd stormed the Capitol to try to block certification of the 2020 election results. Aside from certain loyalists, it seems that most agree that under the colloquial understanding of incite, Trump incited the insurrection. Even some insurrectionists pointed the finger at him, like the one who said, “We were invited by the president of the United States,” as they lay siege to the Capitol.
When the Senate tries Trump on the single charge in his second impeachment—“INCITEMENT OF INSURRECTION”—it will doubtless consider whether his incendiary Jan. 6 diatribe is protected expression under the First Amendment, as his defenders claim. The question will also be central in a criminal prosecution if the D.C. attorney general’s current investigation leads to an indictment. So, did Trump’s words satisfy a legal definition of incitement, whether in a criminal court or his Senate trial?
To answer that question, we have to start with Brandenburg v. Ohio (1969). In an opinion joined by all of the justices, the Supreme Court overturned the conviction of a Ku Klux Klan leader under a state statute that criminalized advocacy of “crime … violence, or other unlawful methods of terrorism” as a means of effecting political change and barred assembly with any group that promoted such doctrines. The court held that the law criminalized too much speech because it failed to distinguish between “mere advocacy” at the heart of political speech and “incitement to imminent lawless action,” which the First Amendment does not protect.
The Brandenburg ruling proclaimed that freedom of speech protects “advocacy of the use of force” or of illegal acts “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to produce such action.” That test continues to govern incitement law.
Brandenburg involved an appeal from a criminal conviction by a Ku Klux Klan leader, Clarence Brandenburg, who had advised the hooded crowd at a Klan gathering that “if” the federal government “continue[d] to suppress the Caucasian race, it’s possible that there might have to be some revengeance taken.” A wooden cross was burned during the rally, and a video revealed weapons. No acts followed. Brandenburg’s exhortation lacked imminence. The possibility of illegal forms of revenge was remote; the threat of vengeance was conditional, only to occur if something out of the crowd’s control happened. Brandenburg did not call for any immediate action.
Trump’s speech on Jan. 6 was very different from Brandenburg’s. At noon—with Congress scheduled to meet in joint session at 1 p.m.—Trump exhorted the crowd: “And after this, we’re going to walk down and I’ll be there with you. We’re going to walk down … to the Capitol.” The crowd applauded. Later, wrapping up, he reiterated, “So we are going to walk down Pennsylvania Avenue … and we are going to the Capitol.” Trump’s words more than satisfy the imminence requirement.
Whether he directed illegal acts presents a trickier question. Trump did not specifically instruct people to storm the Capitol, disrupt the certification of Biden’s election, destroy or steal government property, kill law enforcement officers, or terrorize the officials in the building, including his own vice president. It’s important to note, however, that incitement can be implicit as well as explicit.
Fact-finders sitting in judgment will decide whether Trump’s language was implicitly “directed at inciting or producing” imminent lawlessness. But public actions from that day suggest it was. He stirred people up with baseless claims, rejected by dozens of courts since Election Day, that he had “won” the election “in a landslide.” He insisted, “We won’t have a country” if we don’t “fight like hell,” adding that “we will not let them silence your voices. We’re not going to let that happen.” He questioned the steadfastness of Vice President Mike Pence (“I’m not hearing good stories”), whom the insurgents later threatened to hang. Meanwhile, the audience chanted, “Fight for Trump,” suggesting they got the message.
That context matters. After Trump spoke, many of those who listened to him in person attacked the Capitol. Trump’s own behavior that afternoon also proves significant. He did nothing to stem the violence while he watched it unfold live on television. He never seriously exhorted the crowd to cease and desist. When he finally spoke, he undercut his scripted law-and-order message by reiterating that “a sacred landslide victory” had been “viciously stripped away from great patriots.” He urged them to “Go home with love.” Trump reportedly called freshman Sen. Tommy Tuberville of Alabama, seeking his help in delaying certification of the Electoral College count. All of this demonstrates that Trump intended the result he got: insurrection. It also points to dereliction of duty to protect the government and the Constitution.
Senators or jurors might also justifiably look backward to Trump’s Dec. 19 tweet inviting supporters to gather in Washington on Jan. 6—“Big protest … Be there, will be wild”—and possibly further back to all of Trump’s efforts to delegitimize the 2020 election. None of those earlier tweets and statements count as incitement because any threat they contained was remote, but they provide context for how Trump’s listeners understood his Jan. 6 speech. Trump, in turn, presumably knew that people from all over the country planned to bring weapons and disrupt the Capitol because they shared their plans on public social media sites. Those preparations increased the likelihood that Trump’s speech would spark lawlessness, though Trump may argue that the insurrection had independent momentum.
Legal observers debate whether courts should look to the average listener or to specific listeners, like the self-selected group that attended Trump’s rally, to determine the likelihood that the crowd will take action. But Trump’s words amount to incitement under either standard. Let’s start with the subjective. We know how a significant portion of those at Trump’s rally understood his language, not only from their actions but from their subsequent words. For example, after she was arrested, Jenna Ryan, who flew from Texas to Washington for the Jan. 6 events, justified her conduct by saying: “I was following my president. I thought I was following what we were called to do.”
The widespread impression that Trump’s speech incited the ensuing riot appears to satisfy an objective standard as well. Many who watched Trump’s speech from afar feared it would trigger violence, though we lacked the imagination to envision the horror that followed. An audience did not have to be specially primed to hear Trump’s speech as a call to action and as permission to, in the words of one reporter, take “more extreme measures.”
Trump’s defenders point to a single sentence of his speech to counter the incitement charge. A master at crafting deniability, Trump put on the record: “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard” (emphasis added). He then pivoted to his pervasive imagery of warfare: “Our country has been under siege for a long time.”
This same maneuver had enabled Trump to escape liability in a civil suit brought by peaceful protesters who had been roughed up at one of his campaign rallies in 2016. Trump convinced an appellate court that his single admonition, “Don’t hurt ’em,” insulated his five exhortations to “get ’em out of here” from any “plausible” reading as advocating violence.
But if a single sentence in an inflammatory speech could inoculate incitement from liability, every sentient speaker would add the requisite phrase while inciting to their heart’s content. Here, the extent of inflammatory rhetoric compared with a passing nod at peaceful behavior indicates Trump’s language was directed to incite and was likely to incite. Still, that will be question for senators or jurors to decide.
In the end, the intricacies of incitement doctrine in criminal law may not matter in the Senate. Different rules apply.
Senate rules are conspicuously silent regarding the standard of proof in impeachment trials. When Chief Justice John Roberts presided over Trump’s first impeachment trial, he submitted the case to the senators for a vote without specifying any standard, or indeed giving any guidance at all.
Absent guidance, a senator might justifiably conclude a preponderance of the evidence established that Trump incited insurrection, while in criminal proceedings the prosecution would have to show that it had proved each part of the Brandenburg test beyond a reasonable doubt. A conviction in the Senate would not broaden the constitutional definition of incitement. Under the criminal standard, Trump’s implicit direction to the crowd on Jan. 6 might fall short of the stringent Brandenburg requirement that the speech be directed to producing imminent lawless action.
That distinction alone could lead to a conviction in the Senate, followed by a decision not to pursue charges or an acquittal in federal court. Neither of those outcomes should be seen as undermining the legitimacy of a Senate conviction.
In a moment of crisis, it may prove tempting to disregard the fundamental premise that free speech is essential to democratic self-governance. The First Amendment recognizes that speakers hope their words will lead to action and not prove impotent—but it never protects violence. Brandenburg allows dissidents of every stripe to organize, motivate, and act. It must continue to protect movements from Black Lives Matter and environmental causes to the Proud Boys, until they cross the line from zealous advocacy to unprotected incitement.