Them’s Fightin’ Words: The First Amendment and Incitement
The debate is raging again, in the wake of the events at the Capitol last week. Some attribute liability to the President and his supporters in power — particularly Ted Cruz and Josh Hawley — for encouraging the violent disruption of government that took place. Others blame Q Anon adherents and other self-proclaimed “Patriots” who whipped themselves and their comrades into a frenzy online. Others maintain that no speech at all is to blame, only the decisions of individuals. While some angrily demand prosecution of those who most vocally encouraged the actions that took place, still others cite First Amendment freedoms as a shield. Who is correct? There is guidance, however murky, from our Supreme Court.
Modern First Amendment jurisprudence starts in 1919 with Schenck v. US, from whence the “crowded theatre” maxim came. Mr. Schenck was a member of a socialist organization which put out a publication urging enlisted and drafted men to defy their orders. Schenck was charged with conspiracy to espionage and related crimes. He appealed his convictions based on First Amendment protections and lost before a 9-0 Court. The Court held that speech that creates “a clear and present danger…that the government has a right to prevent” is not protected. Said Justice Holmes in his famous line:
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.
Schenck was strengthened in 1927 by Whitney v. California in which the Court upheld a state statute that criminalized “speech that undermines the public welfare by inciting criminal activity, disturbing the peace, or advocating the violent overthrow of the government.” Justice Brandeis wrote a notable concurrence, in which he partially rejected the “clear and present danger” test formulated in Schenck and applied in Whitney. Justice Brandeis opined that the danger must be imminent in a strict sense of the word, with “no time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education.” Succinctly, he stated “only an emergency can justify suppression.”
Schenck has never been overturned, but it has been tempered in the century since. In Brandenburg v. Ohio in 1969, the conviction of a KKK leader who, in addition to other unrepeatable invective, stated at a rally in Ohio: “We’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken…We are marching on Congress July the Fourth, four hundred thousand strong.” Brandenburg’s conviction was under a statute substantially similar to that of California in Whitney. Here, however, the Court explicitly overturned Whitney:
…we are here confronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action. Such a statute falls within the condemnation of the First and Fourteenth Amendments. The contrary teaching of Whitney v. California, supra, cannot be supported, and that decision is therefore overruled.
The Brandenburg Court went on to establish the test of “imminent lawless action”, similar to what Brandeis advocated in his Whitney concurrence.
The Court has had opportunity to apply the Brandenburg test in the ensuing 50 years. In Hess v. Indiana in 1973, Hess, an anti-war demonstrator, was convicted of disorderly conduct for stating “we’ll take the fucking street again” at a campus protest. For context, his statement was alleged to have occurred following law enforcement having succeeded in moving the protestors off the street to allow vehicles to proceed unobstructed. The trial court found that Hess’s words were intended to, and likely to, incite further illegal action by the attending crowd- of retaking the just-cleared street. The Supreme Court ultimately reversed, holding that Hess’s words, “at worst…amounted to nothing more than advocacy of illegal action at some indefinite future time.”
Brandenburg is where we are today, and where we must start in determining whether those individuals who appear to have advocated the events that occurred at the Capitol on January 6th are criminally liable. Let’s start at the bottom and work our way up.
First, the very online Q Anon faithful who have spent the better part of 4 years working themselves into a righteous frenzy over the cannibalistic pedophiles they believe make up most of Congress and devoting themselves to the worship of Donald Trump under the guise of “patriotism.” They’ve long awaited “The Storm™,” that moment when “the Plan” is revealed to all and the public tribunals and executions begin. Their de facto leader, “Q,” remains unidentified, and in fact his/her cryptic, periodic messages or “Q Drops” are so vague that I don’t think any case could be made for holding whoever runs the Q account liable for anything. Running a cult is not a crime, after all. Not in and of itself. The adherents have been largely self-directed on this path in a sort of mass hysteria.
If there is any one Q personality who has emerged as a known leader of the group, or who can be pinpointed as the ringleader of the swarm on Washington, I am unaware. The various social media platforms have been replete with individuals exhorting like-minded folks to take action, to show the Dems/the Left/Nancy Pelosi that they won’t tolerate this subversion of Trump’s victory. The call to march on Washington, in and of itself, is nothing. Marching on Washington is the most American thing imaginable. Taking into consideration the imminence requirement set forth by Brandenburg, one would be hard pressed to establish a case for inciting violence based on tweets leading up to January 6th.
Moving slightly up the chain to Cruz and Hawley and their ilk, things don’t change much. While certainly they wield more influence than MagaPatriot81433054, they managed to couch their rhetoric in a way that is far from an obvious call to illegal action, let alone a specific call for violence. While an argument could be made that they know better and perhaps should be held to a higher standard, in terms of Freedom of Speech protections, we err on the side of protection.
And now, what about Trump? Our leader for the time being, whether we like it or not, stood in front of the revved-up crowd that day, just down the street from the Capitol, and implored them to march down there to “take back our country…show strength…be strong.”
And so, they went, likely feeling as though their aims had been sanctioned by their hero and leader. They went right after he gave the order. It doesn’t get much more imminent than immediate action. So, it’s incitement, right? Brandenburg is satisfied, isn’t it?
Well, what exactly did he tell them to do? Walk down there, he said. Show strength. Take back our country. Words that no doubt gave more than a few people listening the resolve to do what they then did. But it is important to note that he did not say go in the Capitol. He didn’t say get in there and break things, steal things, terrorize members of congress.
It is quite fairly argued that he didn’t say those things because he knew he didn’t have to, that he should have known and probably did know what a powder keg he was lighting with his words. No one can seriously suggest that Trump was unaware of the rhetoric online or the overzealousness of his supporters; he is much too online for that. But again, this is the First Amendment we are analyzing. Combine with the reasonable doubt requirement of a criminal conviction, and prosecuting Trump for his words that day becomes a very tall order, in my opinion.
This is not to say his words and actions — and those of Cruz and Hawley — weren’t repugnant. Contemptible. Deserving of any political and social consequences that may follow. But they probably managed to just tiptoe the line of criminal without crossing. It is reasonable to argue that their rhetoric is to blame for what occurred, but moral blame is not the same as criminal liability. Free speech is not absolute, but it is pretty darn near.2
Finally, let’s address the issue of social media deplatforming. Trump lost his Twitter account, and now many others of a conservative stripe have been suspended. Then, Apple and Google Play took Parler, the MAGA-dominant Twitter competitor, out of their app stores because of a lack of moderation allowing explicit threats of violence on the platform. Personally, I disagree with their actions on principle. Silencing these voices does not change their opinions or stop their actions, but it does make them harder to trace. I suppose there is an argument for preventing spreading of dangerous thoughts and suggestions to others vulnerable to influence, but that is a precedent we should be very careful about setting. In any event, Google, Apple, and Twitter are not our government, no matter how much Jack Dorsey might want to be an overlord. It is not First Amendment censorship.
Seeing our Capitol in peril was frightening to many. Certain things are sacred to Americans. The Capitol is one of these things; the First Amendment is another.
- Despite the title of this post, “fighting words” are distinct from “speech that incites violence,” though both are limited but recognized exceptions to First Amendment protection.
- To be clear, I do not argue or suggest the actions of the Capitol infiltrators were protected First Amendment expression. Not at all.