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Thursday, January 07, 2021

Brandenburg Concerto

Does anything that Trump or Rudy said at the pre-putsch rally satisfy Brandenburg? I describe the Brandenburg paradigm as standing in front of a torches-and-pitchforks mob outside a poorly guarded jail and shouting "let's go get this guy." And at least the Sixth Circuit holds that "get him out of here (but don't hurt him)" to a grandstand of rallygoers surrounding a protester is not enough. How close were yesterday's statements to calls to invade the Capitol right now?

Here is Trump: "And after this, we're going to walk down there, and I'll be there with you, we're going to walk down ... to the Capitol and we are going to cheer on our brave senators and congressmen and women . . . And we're probably not going to be cheering so much for some of them. Because you'll never take back our country with weakness. You have to show strength and you have to be strong."

And Rudy: "If we are wrong we will be made fools of, but if we're right a lot of them will go to jail. So let's have trial by combat."

Brandenburg is (and must be) a high hurdle, so I doubt it. Is either specific enough as a call for a physical attack? (Rudy might say "trial by combat" refers to an alternative adjudicative process and was a criticism of how courts have handled their lawsuits--although how many of the people who heard him know that and how many would hear "combat" as a general call to arms to put wrongdoers in jail). How will a court regard temporal imminence if the crowd had to walk some distance from the Ellipse to Capitol Hill after the speakers were done--we'll take the fucking Capitol after we walk two miles.

Update: Eugene Volokh thinks not, because Trump's words were not specific enough about rioting or invading the building. Fiery rhetoric designed to promote peaceful protest must be allowed, even if some might act violently on it. He allows that what is different here is that Trump's job is not only not to call for imminent lawlessness (that is everyone's job), but to stop lawlessness when it occurs, so he ought to steer farther from the line. But that is a political concern over governmental duties, not baked into Brandenburg.

That last point works in both directions. The special obligation on government officials does not affect the Brandenburg analysis. But it also makes morally blameworthy speech that comes nowhere near Brandenburg. Had Trump not spoken at the rally, he has been fomenting what happen with his charges of fraud and stolen landslides--none of that is close to incitement, all of it would be regarded as morally blameworthy.

Posted by Howard Wasserman on January 7, 2021 at 08:48 AM in First Amendment, Howard Wasserman | Permalink


Most of the law I've seen from Professors Wasserman, Volokh and Blackman seems to have been civil cases, and/or Supreme Court cases with a high level of generality like Brandenburg itself. However, my sense is that the criminal cases are much more willing to trust juries to determine a speaker's intent, even in the face of a First Amendment defense, where the prosecution proposes to prove that the defendant had actual intent to solicit a crime. For example, United States v. White, 610 F.3d 956, 960 (7th Cir. 2010) (reversing dismissal of indictment; "that a request for criminal action is coded or implicit does not change its characterization as a solicitation"); United States v. White, 698 F.3d 1005 (7th Cir. 2012) (reversing set-aside of jury's guilty verdict in same case). If there is a robust body of cases dismissing criminal charges on First Amendment grounds on the theory that juries should not be able to evaluate mens rea behind arguably equivocal words, I hope someone will post them, because I haven't seen them.

Posted by: Jack Chin | Jan 10, 2021 12:47:19 PM

@ Jamie Colburn,

I never even addressed you . . .

Posted by: thegreatdisappointment | Jan 7, 2021 6:37:59 PM

Knock it the fuck off! The comments section of this blog is not here as the site of your not-ready-for-Twitter pissing match.

Posted by: Howard Wasserman | Jan 7, 2021 6:16:08 PM

Actually, the word I was looking for was the word I used. I'm fully aware that well meaning people may quibble over the hallmarks of a "coup." Heck, that even played out today in the New York Times. See https://www.nytimes.com/2021/01/07/world/americas/what-is-a-coup-attempt.html?action=click&module=Spotlight&pgtype=Homepage.
But it is beyond ironic that someone who can't even comment on a blog post using his actual name would try to fog things up with non sequiturs from history while telling others to "dial back the rhetoric." Maybe if you'd stopped to consider just how extraordinary these events are for this country, it would've occurred to you that "attempted coup" was about as accurate a label as there is (for the time being). As Howard pointed out already, Trump was hardly inciting these people because he wanted some government property vandalized. Do you make a living from pettifoggery or is it just in your spare time?

Posted by: Jamie Colburn | Jan 7, 2021 5:45:03 PM

Howard, it's not the first time, either. Protestors have stormed capitols before the heckle and shut down floor debates. The 1967 Black Panthers carried firearms into the state capitol to protest a gun control bill and stop the vote.

The words you're looking for is 'destruction of government property' and 'trespassing'.

There was no attempt--none at all--to set up any sort of second government or do away with the sitting government.

Posted by: thegreatdisappointment | Jan 7, 2021 5:27:23 PM

They took over a government building with the purpose of dictating or prevent part of the government from performing its functions or to influence how it performed its functions. Photos indicate some people went in with zip-ties, suggesting plans to cuff some people.

Dissolving a government is not a thing in a system of separation of powers, where the executive branch remained no matter what they did.

I'm all ears for a better word. Maybe whatever we would call Charles I walking into Commons, but if he got a bunch of yo-yos to do it for him.

Posted by: Howard Wasserman | Jan 7, 2021 3:02:49 PM

It wasn't a 'putsch'. Or a coup attempt.

One very important thing was missing: they never tried to dissolve the gov, or declared the gov dissolved, or tried to set up a separate governing body while they were in the Capitol. Even during the *actual* putsch, the Nazis exclaimed at the beginning that the government was dissolved and they were forming a new government.

Yesterday was way more on the scale of looting and burning Hutchinson's home in 1765 than an actual putsch or coup attempt.

Everybody needs to dial the rhetoric back down to a 9.

Posted by: thegreatdisappointment | Jan 7, 2021 12:20:40 PM

This about sums up the source of apathy that I feel toward the principals of our very own failed coup attempt. It's not like anything they've said in the last 72 hours was new, unexpected, or especially seditious for them. Meh. So the actual reconciliation we the people need is for those in charge of the Capitol Police to be brought to account. Every one of them that allowed this national embarrassment to happen should be memorialized by being dragged up before the superintending Congressional committees, publicly named and shamed, and fired. Had it not been for them, the would-be thugs would've gotten what they had coming to them. They would've stood out in the cold for a long time exhibiting their lunacy, nothing would have changed, and they would've been mostly ignored and gone home.

Posted by: Jamie Colburn | Jan 7, 2021 9:22:37 AM

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