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Friday, January 08, 2021

No on Brandenburg (Updated)

Updates at bottom.

Here is the full transcript of Soon-to-be-Ex President Trump's remarks to the pre-sedition rally. After reading it (and at this point hearing Trump's voice as I read his words), I will follow-up on this post by being more assertive: There is no way this is punishable incitement under Brandenburg.

The speech is largely a string of oral tweets from the past few weeks and months and no different than what he has said at rallies, most recently on Monday in Georgia: The press as enemy of the people and not telling the truth; fanciful and farcical nonsense stories about election misconduct; "sir" stories about the people who are nice to him; touting of his accomplishments as President;* crowd size; cancel culture and critical theory; and the usual airing of grievances 11 days to late. He also laid out a series of election-reform proposals. And he told lies about what the Constitution allows or requires.

[*] There is an amazing disconnect. Before Wednesday, Trump still had competition from Andrew Johnson and James Buchanan. That race is over. But Trump and his supporters continue to talk about him as one of the top Presidents.

The words spoken matter--they must explicitly or implicitly encourage lawless action, allowing for rhetorical hyperbole, overstatement, and even offensiveness. Second, and related, Eugene Volokh argues that modern doctrine is unlikely to treat as incitement words that do not on their face call for unlawful conduct (e.g., Antony's funeral oration or the often-misquoted "will no one rid me of this troublesome priest"). Third, context matters. The lawless action must be "imminent" and "likely." So the same words spoken in front of a large crowd determined to "stop the steal" two miles from the Capitol while votes are being counted is different than spoken at a rally in northern Georgia on a Monday night. Finally, whatever we may think we "know" about Trump's intent, it is hard to prove beyond a reasonable doubt.

The general content here is not incitement of anything; it is standard Trumpian fare. It does not matter that the speech is designed to get the crowd upset at the injustices visited upon Trump and upon them.  Nor does it matter that it is likely or foreseeable that some would act unlawfully upon hearing these words and becoming outraged. The point of moving to Brandenburg from the old clear-and-present danger test was that we punish conduct not speech and that we do not routinely punish speakers because of what unconnected third parties do. We also want to leave speakers free to engage in words--one man's vulgarity and all of that.

With that in mind, much of this speech does not call on or encourage anyone to do anything, much less something that is lawless and imminent.

Here are the only segments that might come close:

1)

All of us here today do not want to see our election victory stolen by a bold and radical left Democrats which is what they are doing and stolen by the fake news media. That is what they have done and what they are doing. We will never give up. We will never concede. It doesn't happen. You don't concede when there's theft involved.

Our country has had enough. We will not take it anymore, and that is what this is all about.

And to use a favorite term that all of you people really came up with, we will stop the steal.

This is from the beginning of the speech. It is hard to see this as other than hyperbole.

2)

We will not let them silence your voices. We're not going to let it happen.

Not going to let it happen.

[This was followed by a chant of "Fight for Trump," for which Trump thanked the crowd].

He is urging the crowd to not let the silencing of their voices happen, not to engage in unlawful action.

3)

[Speaking of Pence doing the non-thing of sending the votes back to the states] That takes courage, and then we are stuck with a president who lost the election by a lot, and we have to live with that for four more years. We're just not going to let that happen.

This could be read as urging people to not to let happen the four years of the Biden Administration. But, again, allowance must be made for rhetoric and hyperbole.

4)

We're going to walk down. Anyone you want, but I think right here, we're going to walk down to the Capitol--

And we're 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.

We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated. Lawfully slated.

I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard. Today, we will see whether Republicans stand strong for integrity of our elections. But whether or not they stand strong for our country, our country. Our country has been under siege for a long time.

This was the segment that has been making the rounds in the media and that I quoted in my prior post. Note that last paragraph specifically speaks of marching to "peacefully and patriotically make your voices heard" after calling for strength. In rejecting tort claims against Trump arising from a 2016 rally, the Sixth Circuit emphasized that Trump followed his call to get the protester out, the alleged incitement to assault, by saying "don't hurt him" as mitigating the meaning of the words and the intent. Similarly, the call for strength is tempered by the call to do it peacefully. That call for peacefulness is perhaps tempered the other way by the subsequent insistence that the country has been "under siege"--peacefully talking is not the "strong" response when one is under siege.

In any event, again, fiery rhetoric is allowed.  Also, in terms of imminence, the above occurred less than 1/5 of the way into the speech. So does that mitigate the intent or likelihood of encouraging imminent lawlessness if he then keeps talking? Eugene Debs spoke for something like three hours in Canton.

5) This is the final 90 seconds-or-so:

I said something is wrong here, something is really wrong, can't have happened and we fight, we fight like hell, and if you don't fight like hell you're not going to have a country anymore.

Our exciting adventures and boldest endeavors have not yet begun. My fellow Americans, for our movement, for our children, and for our beloved country, and I say this despite all that has happened, the best is yet to come.

So we are going to--we are going to walk down Pennsylvania Avenue, I love Pennsylvania Avenue, and we are going to the Capitol, and we are going to try and give--the Democrats are hopeless, they are never voting for anything, not even one vote but we are going to try--give our Republicans, the weak ones because the strong ones don't need any of our help, we're try--going to try and give them the kind of pride and boldness that they need to take back our country. So let's walk down Pennsylvania Avenue.

Again, not encouraging or hinting at lawlessness. "Fight like hell" lest we no longer have a country is troubling, but in context does not suggest fighting in the physical or unlawful sense as opposed to be speaking out--again, rhetorical hyperbole is fair game. Trump is talking about marching, not storming the Capitol. Urging people to give members of Congress "pride and boldness" could mean peacefully speaking or protesting in support of what the crowd wants and hopes they will do.

This analysis goes to a possible post-January 20 (or even post-January 12) criminal prosecution. It is a separate question whether this constitutionally protected speech could be the basis for impeachment-and-conviction. Josh Blackman and Seth Tillman argue that it cannot.

Without getting too far into the point (this post is already too long), otherwise-protected speech can be the type of abuse of office that impeachment exists to punish. As Volokh argued, the view that Trump's speech was unprotected comes from a gut feeling that POTUS should not engage in such talk, regardless of the Brandenburg line. As he outs it, "Trump's failure was a failure not as a speaker, of the sort that strips speakers of First Amendment protection. It was a failure, a massive and unjustifiable failure, as a public servant." Impeachment exists to remedy those failures. Update: Jonathan Adler and Ilya Somin agree that the First Amendment is not a bar to impeachment, grounded in the broader view that impeachable conduct need not be criminal.

Posted by Howard Wasserman on January 8, 2021 at 11:05 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink

Comments

Howard,

Would love to hear your take on that 5th Circuit case and Trump/Capitol riot, on the question of "Does the First Amendment protect trump from civil liability (assuming that) he directed people to protest illegally, and that the victim's injury was reasonably foreseeable based on that direction"

Posted by: More? | Jan 8, 2021 6:40:27 PM

If this is correct than I think the fact that something can a) fail Brandenburg and b) succeed at inciting an actual riot speaks to a problem with the doctrine.

Posted by: B. Brown | Jan 8, 2021 11:44:39 AM

The Fifth Circuit screwed the pooch on that case and SCOTUS reversal is imminent.

Posted by: Howard Wasserman | Jan 8, 2021 11:20:32 AM

No civil liability because governmental immunity? I think that fellow in New Orleans said less and is still facing civil trial.

Posted by: J. Bogart | Jan 8, 2021 11:10:05 AM

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