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Alan Z. Rozenshtein & Jed Handelsman Shugerman, January 6, Ambiguously Inciting Speech, and the Overt-Acts Solution, 37 Const. Comment. (Forthcoming 2023), Jan. 21, 2023 draft available at SSRN.

There can be no doubt that January 6, 2021, was one of the worst days in United States history. Outgoing President Donald Trump held a rally with supporters near the Capitol, urged them to keep “fighting” (the adverse election results and more), and sent them to illegally storm the barriers of the U.S. Congress. A Trump supporter lost her life, and numerous Capitol police and security officials were injured trying to defend the site. Many Trump supporters carried weapons but, miraculously, nobody in Congress was injured. Among the attackers were members of right wing extremist groups like the Proud Boys, who Trump encouraged.

One of the key questions in this tragic episode is whether the President himself committed a crime by engaging in inflammatory speech. The January 6 Congressional Committee has urged the U.S. Department of Justice to bring charges against Trump. But one legal defense that President Trump will employ is that the U.S. Constitution’s First Amendment protects his speech. Law professors Alan Z. Rozenshtein and Jed Shugerman answer the question of whether this defense should prevail in their impressive forthcoming article, January 6, Ambiguously Inciting Speech, and the Overt-Acts Solution.

The article focuses principally on whether the Supreme Court’s famous per curiam decision in Brandenburg v. Ohio protected his speech. In Brandenburg, the Court ruled unconstitutional an Ohio Criminal Syndicalism statute that was being used to prosecute Ku Klux Klan members. The KKK members were verbally advocating disobedience of the law and various racist views. The Court adopted a multi-part test for when a prosecution against inciting speech could be allowed under the First Amendment and said the test had not been satisfied. The test required that a speaker deliberately advocate illegal conduct, and that there be a likelihood of imminent lawlessness taking place. The Court in Brandenburg said mere advocacy of illegality, as opposed to incitement, was not enough. And there was certainly no imminent danger.

Brandenburg is still good law, and there have been cases where the Court seems to have given a very pro-speech interpretation of the test. But it is a very short opinion on a vital topic. It is also not clear how the case applies in certain contexts, like the Internet. Trump’s January 6 speech was ambiguous in that parts of the speech urged fighting, while other parts were more toned down. Yet most people agree that President Trump’s speech encouraged and supported the rioters. Nonetheless, a strong formalistic reading of Brandenburg might protect him. To put it another way, the case’s meaning is not perfectly clear, and the January 6 context is especially difficult.

The authors note these problems, as well as earlier inflammatory incidents in which Trump was involved. The article’s authors argue that “The key lesson from these cases is that ’mere abstract teaching‘ is different than ’preparing a group for violent action.’” The authors use other incitement-type cases to gain a perspective on the problem, such as NAACP v. Claiborne Hardware Co. (NAACP organizer essentially threatens members who are not sufficiently committed to protest effectively).

The authors also reference the one major decision dealing with similar issues regarding President Trump’s actions on January 6, Thompson v. Trump. There, D.C. District Court Judge Amit Mehta conceded that Trump did not “explicitly encourage the imminent of use of violence,” but held that Trump’s lengthy effort to discredit the election could be viewed as “encouraging the attack on the Capitol.” Perhaps inspired by this opinion, the authors argue that the crucial incitement answer is found in the overall context of the situation, which included actions even before the worst statements. Based on this framework, the authors make a strong case that Trump took actions that convert his statements to unprotected incitement.

For example, the authors show that Trump urged security officials to remove the “magnetometers” that were keeping the January 6 crowd farther away from him and the Capitol. Moreover, Trump made a statement that ratified the rioters’ view that Vice-President Pence deserved to be killed for his inaction. And Trump apparently wrestled with his Secret Service driver, in an effort to get the car to the Capitol where the riot broke out. The authors argue that these acts, along with Trump’s earlier fervent rejections of the election results, “represent concrete steps to incite, insurrect, and obstruct.” What makes the article even more interesting is the analogy it draws to incidents involving the era of Aaron Burr. Trump’s actions removed any ambiguity from the intent behind his speech and pushed it into the criminal category.

The one problem with the article—one that shows the difficulty of the issue—is that some of the “actions” that it refers to, as distinct from speech, are actually expression. But overall, the article is helpful in clarifying the incitement principles regarding President Trump’s speech and actions on January 6, 2021.

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Cite as: Mark Kende, Former President Trump: Inflammatory Speaker or Criminal, JOTWELL (March 30, 2023) (reviewing Alan Z. Rozenshtein & Jed Handelsman Shugerman, January 6, Ambiguously Inciting Speech, and the Overt-Acts Solution, 37 Const. Comment. (Forthcoming 2023), Jan. 21, 2023 draft available at SSRN), https://conlaw.jotwell.com/former-president-trump-inflammatory-speaker-or-criminal/.