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, this does not mean that Trump is not guilty.
The Senate’s decision has ignited powerful responses from both sides of the political spectrum. Representative Jamie Raskin, who leads the House impeachment managers, stated that the “definition of proscribable speech [set out in Brandenburg v. Ohio] fits [former] President Trump’s conduct perfectly,” while those on the opposite side of the political spectrum disagreed. So which is it?
The Legal Test
The legal definition of incitement had a huge effect on the Senate trial of former President Trump. In a 1969 case, Brandenburg v. Ohio, 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.
The Supreme Court has rarely found defendants guilty of incitement based on this standard. The defendant in the Brandenburg case, for example, was the leader of the Ku Klux Klan’s Ohio branch. During a rally, Brandenburg stated that if the white race continues to be “suppressed,” “there might have to be some revengeance taken.” The Supreme Court found that Brandenburg’s 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.
A few years later, in Hess v. Indiana,the Supreme Court applied the Brandenburg standard to an incitement charge against a protester who announced at a protest that they will “…take the f—ing street again.” The Supreme Court stated that this speech was not incitement because it “amounted to nothing more than advocacy of illegal action at some indefinite future time,” and because the defendant did not intend the speech to incite lawless action. The Hess and Brandenburg cases exemplify just how difficult it is to meet the incitement standard.
Trump’s 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 “Save America March.” At the event, Trump continued to say that the election was stolen, and that he and his supporters “will not take it anymore” and must “stop the steal.”
Trump complained to his supporters that “Republicans are constantly fighting like a boxer with his hands tied behind his back. It’s like a boxer. . . . And we’re going to have to fight much harder.” Trump added that “[w]hen you catch somebody in a fraud, you’re allowed to go by very different rules.”
Although most of Trump’s speech focused on calls to fight and show strength, Trump made the comment that “[he knew] that everyone [. . . would] soon [. . . march] over to the Capitol building to peacefully and patriotically make [their] voices heard.” Yet, he indicated to his supporters that “[they will] never take our country back with weakness.”
In this blog post I will analyze whether Trump’s speech constitutes incitement under the two-step Brandenburg test. First, I will analyze whether Trump’s speech was directed at inciting or producing imminent lawless action. Second, I will analyze whether Trump’s speech was likely to incite or produce such action.
1. Was Former President Trump’s speech directed at inciting or producing imminent lawless action?
Trump’s statements must be directed at inciting or producing imminent lawless action to satisfy the first prong of the Brandenburg test. Trump’s call to his supporters to march over to the Capitol building was made directly to his supporters.
However, it is not abundantly clear from Trump’s statements alone that he intended for illegal action to ensue because Trump did not explicitly say “go storm the Capitol.” Trump instead used vague language that does not, on its own, constitute a call for lawless action. Much like the defendant in Hess, Trump’s speech does not seem to rise to the level required by the first prong of the test.
2. Were Former President Trump’s statements likely to incite or produce action?
Trump’s speech must also be likely to incite or produce such lawless action to be considered incitement under the Brandenburg 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’s tweets about Governor Whitmer of Michigan lead a group to plan to kidnap this same Governor.
Furthermore, many (if not most) of Trump’s most-dedicated supporters truly believe that the election was stolen, making it even more likely that Trump’s words would have incited action. Trump’s claims that the election was stolen still lives on today.
Although Trump’s statements seem to pass the second prong of the Brandenburg test, it’s 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’s statements were directed at inciting imminent lawless action or that Trump intended such a result based on his speech alone.
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’s case.