Trump’s speech is probably tenable in all courts – except perhaps the Senate

The Senate will now decide whether President Donald Trump should be sentenced on the charges of instigating insurgency in the House, and there have also been discussions of possible criminal charges against Trump after his departure, resulting from the same. behaviour. These would include federal crimes, such as promoting the overthrow of the government, rebellion and insurgency.

But it would be difficult to convict Trump in a conventional criminal trial for his speech, even if the Senate condemns him. And if the Senate follows the First Amendment precedent, it could escape it as well.

There is no doubt that freedom of expression is not absolute. The First Amendment does not sanction incitement to riot. When an immediate threat to public safety, peace or order arises, the government’s power to punish speech is evident.

On the other hand, the Free Speech Clause of the First Amendment protects a wide variety of speech even though listeners may find it deeply offensive. Speech is not an “incitement” unless (1) there is evidence that the speaker wanted the speech to produce impending anarchy, and (2) the speech is likely to produce that anarchy.

Speeches with only violent images would be protected by the First Amendment. Even the mere tendency of speech to encourage wrongful acts is not enough to punish it, according to the Supreme Court.

The punishable inducement must “specifically advocate” for listeners to take illegal action, give the crowd detailed instructions on how to break the law, or enlist the crowd to commit a criminal act, the High Court said.

According to the Supreme Court’s Brandenburg Criterion, speech cannot constitute incitement unless the speaker intends to cause lawlessness.

Some, including senators in Trump’s trial, will point out that rioters stormed the Capitol after hearing Trump’s speech. For them, the proof that the speech incited violence is obvious: there was violence afterwards.

But defining speech by audience reaction, however, can be an unconstitutional “rowdy veto,” as legal doctrine is called.

The heckler’s veto doctrine states that a hostile reaction from a crowd does not turn protected speech into incitement. A speaker is not automatically responsible for the actions of anyone who has attended a planned peaceful demonstration. Rather, the speaker must have the intention of engaging in the criminal conduct.

Some would say that Trump’s intention was evident in his use of words like “strength” and “combat.” That could be. Courts have protected arguably more violent speech in other cases. Statements such as “We’ll take back the streets” and “If we catch any of you walking into these racist stores, we’re going to break your neck” seem closer to advocating violence than the language of Trump’s speech. .

There is also the question of the “imminence” required for the inducement. No violence was reported during Trump’s speech, which was at the Ellipse. The Capitol is over 1 mile away. The Capitol invasion obviously happened after the rally, but not seconds after the rally, and not at the same location as the rally.

Although there is evidence that Trump “intended” to provoke violence with his speech, and although there is evidence that the violence he intended to provoke stormed the Capitol, he There is potentially a problem of whether the violence was sufficiently “imminent” to be criminal.

Some will conclude that words like “combat” and “force” gave the crowd detailed instructions to violently enter the Capitol building. The Senate can still condemn even though reasonable minds may differ on these factual conclusions. A criminal jury must be unanimous.

A criminal jury is bound by the standard of reasonable doubt. The Senate is not. He’s bound by the two-thirds supermajority voting standard and not much else.