Introduction
The U.S. Supreme Court, in Brandenburg v. Ohio, outlined circumstances for when speech incites violent or criminal conduct and is therefore no longer protected under the First Amendment. This article explores how the speech test emanating from that ruling may be applied to President Trump’s communication and the subsequent siege at the U.S. Capitol on January 6, 2021. A reconsideration of the half-century-old standard is especially warranted given the increasingly widespread reach and impact of digital media platforms that are deployed to advocate for political change and mobilize for that purpose. After coupling an examination of Trump’s communication prior to, during, and after the Capitol siege with a timeline of events, this article concludes that the three key elements of the speech test—advocacy, incitement, imminence—are satisfied. Holding Trump personally responsible in this scenario would establish an updated standard of constitutional jurisprudence applicable to future speech-incitement cases.
The events of January 6, 2021 in Washington, D.C. showed that some individuals and organizations are willing to resort to violence in pursuit of political ends in the United States. On that fateful day, the “Save America” rally was held at the Ellipse near the White House and the National Mall.[1] It was organized to advance the unsubstantiated claim that rampant fraud tainted the 2020 presidential election result. The end goal was to pressure the U.S. Congress to reject the electoral college count certification, which had determined Joseph Biden had defeated Donald Trump, 306 to 232 electoral votes.[2]
The rally hosted several speakers and culminated with a speech delivered by President Donald Trump who fired up the crowd, proclaiming, "We fight like hell. And if you don't fight like hell, you're not going to have a country anymore.”[3]During the rally, some participants (including many of whom were self-proclaimed members of various militia groups) began marching toward the U.S. Capitol.[4] After the rally concluded, many more participants also made their way down Pennsylvania Avenue. [5] Outside the Capitol Complex, hundreds of Trump’s supporters had already assembled to stage the siege.[6] A riot ensued, leaving five dead, many more injured, the Capitol Building vandalized and looted, and a nation shocked and on edge.
Clearly, there are legal consequences to the actions of the rioters. They pushed through fencing and barriers, overran and assaulted security and police officers, breached the building, ransacked and vandalized the rotunda and Senate chamber, and invaded several congressional offices.[7] Authorities have arrested and are prosecuting more than 700 individuals under several federal laws, including entering and remaining in a restricted building, disorderly and disruptive conduct, picketing in a capitol building, obstruction of an official proceeding, and assault on a federal officer.[8] The media have highlighted a “sprawling investigation” into Capitol riot suspects.[9] However, questions remain about culpability, not only of those who engaged in riotous conduct but whether the rally itself and its keynote speaker, notably President Donald Trump, incited such conduct in the first place and is therefore also legally responsible.[10]
The U.S. House of Representatives impeached President Trump on the grounds of inciting an insurrection.[11]Representative and G.O.P. Conference Chair Liz Cheney (R-WY) placed the blame squarely on Trump: “The President of the United States summoned this mob, assembled the mob, and lit the flame of this attack. Everything that followed was his doing. None of this would have happened without the President.”[12] After the Senate acquitted the president, then-Senate Majority Leader McConnell (R-KY) pointed directly at Trump as well, “There’s no question, none, that President Trump is practically and morally responsible for provoking the events of the day. No question about it.”[13] Chris Miller, Acting Secretary of Defense under Trump, agreed: “Would anybody have marched on the Capitol, and tried to overrun the Capitol, without the president’s speech? I think it’s pretty much definitive that wouldn’t have happened.”[14]
Legal scholars, attorneys, and politicians have discussed whether the U.S. Supreme Court’s 1969 landmark Brandenburg v. Ohio[15] ruling, which provides guiding precedent for constitutional questions regarding the relationship between speech and action, applies to the context of the events at and around the Capitol. Specifically, did Trump’s public rhetoric cross the line from protected speech to incite the imminent violence that occurred?[16] As succinctly encapsulated by law professor Erwin Chemerinsky, the ultimate question is “How should society balance its need for social order against its desire to protect freedom of speech?”[17] Advocacy, incitement, and imminent violence are key components of federal law which must be present in order for public speech to no longer enjoy protection under the First Amendment, and, therefore, the speaker to not be held accountable for subsequent criminal actions.[18]
This article presents an evaluation of the Brandenburg ruling and precedent established in light of the events surrounding the Capitol siege on January 6, 2021. While the events of this day are disturbing, they are also unprecedented and provide a platform from which to critically assess the applicability of the Brandenburg speech test to a set of non-hypothetical facts.[19] Observers have highlighted the “frailties” of the test for its “lack of guidance on how courts should evaluate the probability that an inciting speech act will cause an imminent offense.”[20] Indeed, this is the first real opportunity since the Court’s seminal speech ruling in 1969 to consider the connections between public speech and a major violent incident on federal property. Such a reconsideration is especially warranted given the increasingly widespread reach and impact of digital media platforms that are deployed to advocate for political change and mobilize for that purpose. Rather than making a case for Donald Trump’s guilt or innocence as related to his role in the Capitol siege, this article analyzes the core elements of the Brandenburg test and applies them to his public speech, including communication via the social media platform Twitter, and the subsequent actions of others.
Prosecutors could use three laws to determine if speech promulgated by President Trump contributed to the insurrection that followed. Regardless of which is employed, the U.S. Department of Justice would likely apply the Brandenburg precedent as a framework for prosecution. At the federal level, two laws may be used. First, 18 U.S.C. § 373 (2018) Solicitation to Commit a Crime of Violence applies to anyone who “solicits, commands, induces, or otherwise endeavors to persuade such other person to engage in conduct.”[21] An individual who encourages an illegal act is as guilty as those who actually carry out the act. Under this law, an individual’s primary defense would prevent criminal conduct by renouncing it.[22] The second federal law, 18 U.S.C. § 2101, directly applies to communication which triggers violent conduct.[23] In this case, the law would forbid anyone’s use of communicative devices to incite, organize, and encourage a riot.[24] A third means by which authorities can examine the evidence and prosecute is through the District of Columbia’s statute criminalizing incitement to rioting.[25] Individuals would be charged under § 22-1322(d), which punishes anyone who “willfully incited or urged others to engage in the riot.”[26]
To effectively evaluate how the facts surrounding the events of January 6, 2021 fit the Brandenburg speech test, this article is segmented into five parts. Part One presents an analysis of the Court’s Brandenburg ruling, including a discussion of how the decision emerged in 1969 to replace the Clear and Present Danger speech test and a summary description of its three key components—advocacy, incitement, and imminence. Part Two discusses how the Brandenburg test has been applied in subsequent Supreme Court decisions and lower court cases. Part Three provides a critical examination of President Trump’s speech prior to, during, and after the “Save America” rally, as members of the crowd made their way to the Capitol building in reaction (in part, at least) to his rhetoric. Part Four assesses President Trump’s mens rea (state of mind) as reflected in his role in helping plan and organize the rally which turned into a violent riot and siege at the Capitol, and his lack of communication or action to quell the violence after it had started. In addition, Part Four includes an assessment of the apparent motivations of the accused rioters as reflected in public statements and legal argumentation which explicitly point to President Trump’s words, and his silence during the riot, as cause and justification for their actions. Part Five highlights the facts of this case as related to constitutional jurisprudence and elaborates how a legal consideration of Trump’s role as a communicative catalyst that triggered the violent events on January 6, 2021 is connected to macro-level dynamics within American law and society.
I. Review of Brandenburg v. Ohio Decision
In 1969, the U.S. Supreme Court handed down a landmark decision on incitement and hate speech that is currently used by the legal community as the federal law to determine when speech is considered not protected under the First Amendment and may therefore be restricted.[27] In Brandenburg v. Ohio, a Ku Klux Klan (KKK) leader was convicted using an Ohio state statute that applied to those who advocated violence as a means of political change.[28] Clarence Brandenburg, the KKK leader, had contacted and invited a television reporter to attend a Klan rally in Hamilton County, Ohio.[29] Portions of the rally were taped and broadcasted on television.[30] Footage included twelve hooded figures gathered around a large wooden cross. Many of the klansmen uttered phrases derogatory of Black persons and Jews.[31]Brandenburg stated, “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.”[32]
In a per curium decision, the Court unanimously overturned the Ohio law, stating that the First Amendment does not permit a state to forbid a person’s advocacy of the use of force except when the advocacy is directed to imminent incitement.[33] Teaching about violence does not equate with actually preparing a group for forceful, physical confrontation.[34] The Court stated that any speech statute must distinguish between the concept of advocacy in the abstract and explicit advocacy in practice—that is, preparing for and setting in motion a violent encounter.[35] It wrote that any law which fails to draw this distinction violates the First Amendment. “[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”[36] According to Professor Clay Calvert, one must look beyond the overt Brandenburg test to the speaker’s mens rea. That is, does the speaker intend to instigate violence with their speech?[37] Calvert argues that a determination of intent is vital for understanding if and when a speaker is afforded free speech legal protection.[38] Without such motivation, the unacceptable risk is chilling of speech by those who advocate for a political cause or encourage protest for that purpose but do so with non-violent intentions. Professors Wilson and Kiper agree with Calvert that mens rea is the key to an incitement prosecution.[39]
The Court’s decision in Brandenburg departed dramatically from legal precedent established a half century earlier in its Clear and Present Danger test. In the World War I precedent-setting cases such as Schenck v. U.S.[40], Abrams vs. U.S.[41], and Gitlow vs. New York[42], the concern was about speech that could instigate violence—that is, speech that created a clear and present danger to society.[43] In those three cases, the Court ruled that Congress had the authority to pass laws that limited speech which could potentially lead to violence to keep the country safe from civil unrest. In Brandenburg, on the other hand, speech loses its protection only when violence is indeed imminent.
What became known as the Court’s Brandenburg test moved beyond mere advocacy as the standard at which speech was no longer protected.[44] It now included a consideration of imminence—whether or not physical harm could be reasonably considered to occur as a direct result of the speech in question. Does the speech actually instigate illegal action? Yet, the Court provided minimal prescriptive guidance or legal metrics for implementation of the new test, nor has it provided a much clearer standard since the ruling was handed down in 1969. Nonetheless, law Professor Rodney Smolla termed Brandenburg as the “capstone of the evolution” of American legal constitutional jurisprudence regarding free speech.[45] He stated that the Brandenburg ruling rightly emerged from a long line of decisions by the Court regarding “advocacy of violence, incitement, symbolic speech, or graphic protest speech pertaining to political or social issues.”[46]
For over half a century, Brandenburg has been the basis for determining the constitutionality of speech that advocates for and potentially instigates violence. The test is comprised of three key elements.
According to the first element of the test, advocacy—words that inform an audience about the speaker’s hopes, beliefs, and might include the “mere abstract teaching” of political reform—is legally protected.[47] For example, in the original case, Clarence Brandenburg used rhetorical phrasing to inform an audience of his political beliefs that Caucasians were being unjustly suppressed.[48]
The second element of the Brandenburg test relates to a determination of whether words encourage or directly lead to incitement of potentially violent action. As such, this is speech that goes beyond mere advocacy. If a speaker is simply aware that his or her words could provoke illegal action but does not have that in mind as the motivational purpose, the speech is still protected.[49] On the other hand, if the speaker knows his or her words could likely trigger illegal action, the speech is not protected.[50] Brandenburg, for example, referred to a planned Ku Klux Klan march in Washington, D.C. but he never advocated for violence at that upcoming event.[51] The Court noted that peaceful assembly, a bedrock of a constitutional democratic system, was a pivotal part of its legal rationale. Any federal or state statute affecting the right of assembly must “observe the established distinctions between mere advocacy and incitement to imminent lawless action.”[52] Freedom of speech and freedom of assembly are equally important rights.[53]
The third element of the test relates to a determination of whether the speech itself leads to imminent acts of violence. This is at the heart of Brandenburg. The violence must occur immediately or near immediately after the actual spoken words or at the speech’s conclusion, meaning “right now.” Brandenburg’s speech never made it this far; violence did not follow his rally in Ohio.[54] Once illegal action takes place, there are no other free speech factors for consideration as it may be determined that the violent encounter is the direct result from the third part of the test, imminence. [55] In Brandenburg, the Court determined that if violence had resulted from the Klan meeting, the speech would have been illegal.
In his concurring opinion, Justice Hugo Black clarified that the government has no power to curb the “belief and conscience” of any individual based on his or her convictions, except in the rare instances that violence is imminent.[56]Black also noted that action is often considered as a means of expression and equally entitled to First Amendment protection.[57] However, when violent or illegal acts break out subsequent to public speech, the speech in question and the accompanying violence or illegal acts are “indeed inseparable” and can be tied together in any prosecution.[58]According to law Professor Rodney Smolla, Black’s concurrence amounts to a determination about whether there is a strong likelihood of violence as the end result of public speech. Essentially, violence must be “probable.” [59]
The Brandenburg test has rarely been applied in legal cases. As Professor Alan Chen pointed out, “(c)onceptual complexities in drawing boundaries between potentially inciting speech and dangerous conduct make this an inherently difficult problem.”[60] Professor David Crump addressed what he saw as shortcomings in applying the test by offering an eight-part formula to determine when the legal line is crossed such that other competing interests counterbalance free speech.[61] Along these same lines, Professor Marc Rohr articulated a four-part definition of incitement, emphasizing that the Court created a challenging speech threshold that must be met for speech to be deemed unlawful.[62] Regardless of the speaker's intent, the government must satisfy a high legal burden for prosecuting an individual whose speech leads to a violent episode.[63] If a speaker cannot be held responsible for illegal action unless that speech is directed toward incitement and violence is likely to occur, then the speaker cannot be held responsible for any illegal action absent the speaker’s intention of inspiring it.[64] As such, this standard essentially requires an all or nothing calculus regarding the speaker’s culpability.
II. Courts Citing Brandenburg in Subsequent Speech Controversies
A. Hess v. Indiana
The Brandenburg test for incitement has been employed by the U.S. Supreme Court and federal appellate courts in only a small number of free speech-centered cases. It was used as an actual speech test in 1973 in Hess v. Indiana.[65] In this case, Gregory Hess was arrested at Indiana University at an anti-Vietnam war protest when he proclaimed, “We will take the fucking street later (or again).”[66] The local sheriff arrested him for violating Indiana’s disorderly conduct statute.[67] According to the Court, witnesses stated Hess never explicitly exhorted others in the protest to go onto the street and “take it.” He faced the crowd but never moved onto the street.[68] Further, he did not appear to be speaking to anyone specifically during that moment of the protest.[69] Witnesses also confirmed that his voice was no louder than anyone else’s during this incident and could not be heard above the overall noise of the protest.
In its 6-3 decision, the Supreme Court ruled that the Indiana court erred in relying on a federal court interpretation that Hess’s statements were incitement of illegal action.[70] In its per curium opinion, the Court asserted that “at best, however the statement could be taken as counsel for present moderation; at worst, it amounted to nothing more than advocacy of illegal action at some indefinite future time.”[71] The Justices wrote that the statement, taken in context, did not rise to the level at which speech could be prohibited or punished since Hess’s actions failed to satisfy every element of the Brandenburg speech test.
Professor Calvert highlighted imminence as a key factor in the Court’s legal rationale.[72] The defendant referenced taking the streets “later,” which was, at best, a generalized reference to some point in the future.[73] Speech may be regulated only if is determined that it did or would lead to illegal action within a particular time frame.[74] The Hess ruling shows how the Court utilized the Brandenburg speech test four years after introducing it. They determined that Hess’s language did not rise to the level to satisfy the legal burden of incitement nor did any immediate illegal or violent action occur. The Court reiterated that speech can only be regulated and punished when advocacy is directed to incitement and, in fact, “imminent” lawless action.[75]
B. NAACP v. Claiborne Hardware Co.
Nine years after Hess, the Court issued a ruling in which incitement was a significant part of the prosecution’s argument. In NAACP v. Claiborne Hardware Co.[76] the Court would decide whether a Black-led boycott of white merchants in Claiborne County, Mississippi was responsible for a loss of income of the white-owned businesses. The protests occurred over a six-year period between 1966 and 1972, and included picketing and vague threats against the businesses.[77]Business owners sued the boycott leaders for interfering with their ability to earn profits, arguing that their actions led to a loss of income.[78] The lawsuit also raised First Amendment questions since the focus was placed on public speeches by Charles Evers, the head of the local National Association for the Advancement of Colored People (NAACP), who local business leaders accused of encouraging protestors to act unlawfully.[79] He delivered several fiery public speeches that encouraged the local black community to unite behind the boycott which was part of an overall effort directed at racial justice.[80]
The Court examined Evers’s speeches coupled with the actions of others and determined that the content and lack of resulting violence meant that the speech did not rise to the level of incitement.[81] In a unanimous (8-0) decision, the Court concluded that Evers’ rhetoric was “emotionally charged” but did not “transcend” or go beyond the legal boundaries of free speech.[82] Applying the Brandenburg test, the Justices singled out one speech, in particular, that contained an “impassioned plea for black citizens to unify, to support and respect each other, and to realize the political and economic power available to them.”[83] If acts of violence followed Evers’ words, he could have been held responsible since his words incited those acts.[84]
The NAACP decision relied on more than the First Amendment’s speech element. It also addressed the right to peaceably assemble for protest to affect political change. In this case, the objective was to protest public policy decisions which were based largely on race. Accordingly, the boycott of the white-owned establishments amounted to a protest against the county government’s policies rather than the business owners per se. The boycott was the means for the Black community to organize, assemble, and advocate for reform, which is an inherently democratic activity.[85] Justice Stevens wrote that the movement’s goal was to be recognized and heard by the white residents in Claiborne County. “[T]he boycott grew out of a racial dispute with the white merchants and city government of Port Gibson, and all of the picketing, speeches, and other communication associated with the boycott were directed to the elimination of racial discrimination in the town.”[86]
Justice Stevens added an important caveat which applies to political rallies such as those held by the NAACP fifty years ago and the “Save America” gathering at the Ellipse. He said, “(a)n advocate must be able to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause.”[87] As long as these appeals do not instigate lawless or violent action, which actually occur or are reasonably likely to occur, they “must be regarded as protected speech.”[88] This is a place of undeniable departure between existing caselaw, alluded to by Justice Stevens, and the events of January 6, 2021 when widespread violence and law-breaking followed immediately after the featured speaker at the rally, Donald Trump, completed his remarks.
C. Lower Courts Using Brandenburg’s Incitement and Imminence Factors
Since the Supreme Court has only sparingly employed the Brandenburg test, an analysis of federal appellate court decisions provides legal guidance on how to further examine events surrounding January 6, 2021 from a First Amendment Free Speech, and specifically, a Brandenburg prospective. In 1997, the Fourth Circuit Court of Appeals issued an important ruling in Rice v. Paladin Enterprises Inc.[89] using the framework provided in Brandenburg v. Ohio. Hit Man:A Technical Manual for Independent Contractors, published by Paladin Enterprises, was an instruction guide that described, in detail, how to commit murder. The manual was found in the home of James Perry in the investigation of the killing of Mildred Horn, her son Trevor, and his nurse Janice Sanders.[90] Evidence during trial revealed that Perry followed specific instructions in Hit Man in committing the crime.
In this case, the Fourth Circuit reversed a district court’s ruling that Paladin Enterprise’s publishing of Hit Man was protected by the First Amendment’s freedom of press guarantee. The decision, written by Judge Michael Luttig, referred to Brandenburg: “In particular as it concerns the instant case, the speech-act doctrine has long been invoked to sustain convictions for aiding and abetting the commission of criminal offenses.”[91] Judge Luttig confirmed that the U.S. Department of Justice recognizes Brandenburg as the federal law which is used to prosecute those who instigate criminal conduct with any advocacy of communication.[92] The underlying principles are important, according to Judge Luttig, since “the government's interest in preventing the particular conduct at issue is incontrovertibly compelling.”[93]
As such, the First Amendment does not protect a speaker, including a publishing company who seeks personal profit by assisting and encouraging criminal activity.[94] Judge Luttig referenced existing legal jurisprudence whereby the First Amendment was not a defense in the decision.[95] He pointed to existing precedent:
Like our sister circuits, at the very least where a speaker—individual or media—acts with the purpose of assisting in the commission of crime, we do not believe that the First Amendment insulates that speaker from responsibility for his actions simply because he may have disseminated his message to a wide audience.[96]
The danger, he argued, is that if a publisher such as Paladin Enterprises could successfully use the First Amendment to shield speech:
[O]ne could publish, by traditional means or even on the internet, the necessary plans and instructions for assassinating the President, for poisoning a city's water supply, for blowing up a skyscraper or public building, or for similar acts of terror and mass destruction, with the specific, indeed even the admitted, purpose of assisting such crimes—all with impunity.[97]
This excerpt and the underlying principle is especially relevant given the events of January 6, 2021 in Washington, D.C. and the connection between communication—in terms of motivation, content, and delivery—and criminal conduct that unfolded at the U.S. Capitol.
Pointing to Brandenburg, Judge Luttig wrote that Hit Man went beyond simply the publication of advocacy. It was incitement since the “only instructional communicative ‘value’ is the indisputably illegitimate one of training persons how to murder and to engage in the business of murder for hire.”[98] He argued that the 1969 ruling was meant to protect society from the publication of speech such as the Hit Man manual which provides a “detailed, focused instructional assistance to those contemplating or in the throes of planning murder is the antithesis of speech protected under Brandenburg.”[99] The judge’s same conclusion could be applied to Trump’s rhetoric surrounding the Capitol siege which went beyond advocacy regarding a stolen election, since he helped promote the rally and provided cause and justification for resulting violence and criminal conduct.
In another case, The Ninth Circuit Court of Appeals relied on the Brandenburg speech test in 2000 when they addressed whether officials with the Department of Housing and Urban Development (HUD) unconstitutionally restricted the First Amendment rights of a group of people opposed to a housing development in Berkeley, California.[100] In White v. Lee, the court examined a complaint by HUD against three neighbors who objected to the conversion of the Bel Air Motel into a multi-family housing complex.[101] They feared the project would attract mentally disabled individuals and recovering drug addicts to their Berkeley neighborhood.[102] They organized to resist this residential development, including the publication of newsletters to help mobilize supporters.
During the investigation, HUD officials threatened the neighborhood group by issuing a subpoena to turn over their public statements about the housing proposal and required them to “cease all litigation and distribution of ‘discriminatory’ newsletters and flyers.”[103] Writing for the court, Judge Stephen Reinhardt held that this amounted to a violation of free speech. He argued:
We need not decide whether the plaintiffs' primary objective—the defeat of the proposed conversion of the Bel Air motel—would have involved an unlawful act. The mere fact that citizens urge their government to adopt measures that may be unlawful does not deprive the speech involved of its First Amendment protection.[104]
In his explication of Brandenburg and application of the speech test to the facts of this case, Judge Reinhardt upheld the lower district court’s ruling, concluding that HUD officials had unconstitutionally stifled the plaintiffs’ speech by issuing subpoenas. Expressions of public opposition to a proposed housing project are within the broad freedoms of the First Amendment:
We therefore hold that the standard set forth in Brandenburg applies to all the First Amendment activity at issue in this case, including plaintiffs' petitioning activity, regardless of whether the denial of the permit on the grounds urged would have been contrary to the provisions of the Fair Housing Act.[105]
A third example from the federal Court of Appeals illustrates how the Brandenburg speech test applies to a consideration of whether digital communication was used for the purpose of advocacy and resulted in incitement toward a crime. In U.S. v. Fullmer, a case from 2009, the Third Circuit upheld a district court’s ruling that the Animal Enterprise Protection Act, 18 U.S.C. § 43 (2002), did not violate the First Amendment right of animal rights protestors.[106] In this case, a website operated by Stop Huntingdon Animal Cruelty (SHAC) was the communication platform to criticize what it believed was cruelty to animals by Huntingdon Life Sciences laboratories in New Jersey. They published negative information about animal testing and posted details regarding public demonstrations against the company including protests, some of which were illegal, and also included personal information of Huntingdon Life Sciences employees.[107]
In the opinion, Judge Julio Fuentes stated that civil disobedience of any form, whether it be virtual or in-person, is illegal.[108] He wrote that since “SHAC’s website included links to the tools necessary to carry out virtual sit-ins, those posts were clearly intended to incite imminent, lawless conduct that was likely to occur.”[109] Further compounding questions about the permissibility of the SHAC’s speech, their website displayed images of injured victims associated with Huntingdon Life Sciences while applauding the actions by SHAC activists, which included destruction of private property and attacks on Huntingdon’s telecommunications infrastructure.[110] According to Judge Fuentes, such communication meant that “the implied threats were not conditional, and this speech rightly instilled fear in the listeners.”[111] In summary, content on the website was not afforded First Amendment free speech protection since it was deemed to be a legitimate threat to the employees of Huntington – it failed the Brandenburg test since it incited violence.
It is important to note that, in the Fullmer decision, the court not only explicitly employed the Brandenburg test to speech but also applied it to digital communication since a website was used to transmit information that it determined was threatening. Criminal activity subsequently occurred. Therefore, the content on the website was deemed an imminent threat even though a specific time frame to that imminence was not expressed.
Nearly twenty years ago, former law clerk John Cronan argued the Brandenburg test should be applied to the “next challenge”—internet communication—whereby digital messages transmitted by a speaker are received and acted upon by an audience of one or more, often many more, separated by geographic distance.[112] Cronan’s point was that incendiary content posted on a webpage may not be accessed and acted upon until long after it was originally published.
Today, however, with the preponderance of digital communication in the form of social networking and texting platforms, an originating speaker’s message may be shared and amplified exponentially. This new era of communication is characterized by the instantaneous coupling of a transmission and reception, often by multitudes of like-minded individuals who are geographically separated yet actively and aggressively seeking to impose change. As Dean Lidsky highlighted a decade ago:
The Internet in general and social media in particular amplify the potential for speech to cause violence simply by magnifying the opportunities for contextual dislocation; by design, social media have global reach, which makes geographical dislocations ubiquitous. Social media also allow for temporal dislocations because speech in social media often can be heard, read, or viewed long after the speaker
blogged, tweeted, or posted.[113]
As such, some scholars have proposed a “doctrinal shift” of incitement jurisprudence be considered in light of vast social-technological transformation.[114] Professor Calvert highlighted this point where, in his consideration of recent cases regarding incitement to violence, he restricted analysis to in-person scenarios only since there exist “multiple problems with applying Brandenburg to high-tech, mediated messages such as emails, texts, and posts on social media.”[115] On the other hand, other scholars have expressed caution about a substantive reconsideration of precedent. For example, Professor Alan Chen argued that while some favor a “more lenient standard that would permit the government to regulate more speech… it would be premature to reconstruct the Brandenburg test to address perceived changes in our global environment.”[116] Professor Kaminski also expressed hesitancy about proposed changes in Brandenburg standards given the emergence of new media channels and “internet exceptionalism.”[117]
In this case, President Trump used Twitter to broadcast his messages before and after the “Save America” rally, including while unrest unfolded in the Capitol building.[118] It is important to note what Fourth Circuit Court of Appeals Judge Michael Luttig wrote in Rice v. Paladin Enterprises Inc.: “[W]e do not believe that the First Amendment insulates that speaker from responsibility for his actions simply because he may have disseminated his message to a wide audience.”[119] For example, the fact that Trump’s tweets were published on a “large scale” platform and received by millions of users yet only a tiny fraction acted upon them unlawfully is not in and of itself exculpatory.
III. Applying Brandenburg to Trump’s Speech and the January 6, 2021 Capitol Riot
Between Election Day, November 3, 2020, and the January 6, 2021 “Save America” rally, Donald Trump communicated virtually non-stop about unfounded accusations regarding the 2020 presidential election, which he claims was stolen from him. He relied chiefly on his Twitter account where he routinely blasted messages about what has been deemed “the Big Lie” to millions of loyal followers.[120] Prior to his suspension on Twitter, Trump had more than 88 million followers.[121] By examining the public speech by Trump prior to, during, and after the “Save America” rally it is possible to assess the connection between his communication and criminal and violent conduct committed on that day. In particular, this section applies the three elements of the Brandenburg speech test—advocacy, incitement, and imminence—to Trump’s communication and the subsequent siege at the U.S. Capitol.
A. Advocacy
Throughout the campaign season, President Trump repeatedly asserted that the only way he would lose the election would be if it was “rigged.”[122] On election night, he took to the podium to protest the “fraud on the American public,” claiming “We were getting ready to win this election. Frankly, we did win this election. We did win this election. So our goal now is to ensure the integrity for the good of this nation. This is a very big moment.”[123] A month after the votes were cast and his opponent held a sizeable margin in both the popular and electoral vote count, Trump remained defiant, declaring in a speech that “This election is about great voter fraud, fraud that has never been seen like this before…It was about many other things, but above all, it was about fraud. This election was rigged.”[124] Three days later, On December 5, 2020, he tweeted “We have just begun to fight.”[125] A week thereafter, he expressed the same sentiment from his platform on Twitter, only this time in all capital letters.[126] Any one of these messages may seem to be fairly innocuous on its own, but they are only a few examples of the persistent rhetorical drumbeat that set the stage for the “Save America” rally.
On December 26, 2021, Trump lambasted the F.B.I. and Department of Justice for not investigating what he perceived as voter fraud:
The ‘Justice’ Department and the FBI have done nothing about the 2020 Presidential Election Voter Fraud, the biggest SCAM in our nation’s history, despite overwhelming evidence. They should be ashamed. History will remember. Never give up. See everyone in D.C. on January 6th.[127]
The following day, he tweeted “See you in Washington, DC, on January 6th. Don’t miss it. Information to follow!”[128]On New Years Day, 2021, the sitting president yet again promoted the upcoming rally from his popular Twitter platform, proclaiming: “The BIG Protest Rally in Washington, D.C. will take place at 11:00 A.M. on January 6th. Locational details to follow. StopTheSteal!”[129] Later, Trump responded to one of his supporter’s tweets from eleven days prior which read “The calvary [sic] is coming, Mr. President!” with this reply: “A great honor!”[130] These were his first references to the upcoming “Save America” rally, which was initially planned and promoted by groups who claimed no direct ties to the president or his team.[131] After early denials, records indicate that Trump’s allies, including many staffers who had worked on his 2020 campaign, helped coordinate the event.[132]
Two days before the rally, at a campaign stop in Georgia in advance of the two U.S. Senate run-off elections, Trump vehemently railed against the election process and what he claimed were fraudulent results in several states.[133] He urged supporters to get more active and combative, asserting “That was a rigged election, but we’re still fighting it and you’ll see what’s going to happen” to which the crowd called back “Fight for Trump! Fight for Trump! Fight for Trump! Fight for Trump! Fight for Trump!” Trump continued, “We will not bend, we will not break, we will not yield. We will never give in, we will never give up, we will never back down. We will never, ever surrender.” [134]
It is prima facie apparent that the January 6, 2021 “Save America” rally and President Trump’s speech were meant to advocate for his political aspirations, and, as a consequence, geared toward overturning the states’ electoral vote count and deeming him the winner of the presidential contest. In his remarks, Trump proclaimed “Our country has had enough. We will not take it anymore, and that is what this is all about” and implored his followers to “fight like hell” on his and the country’s behalf.[135] Several other speakers at the rally, including U.S. Representatives Andy Biggs (R-AZ), Mo Brooks (R-AL), and Paul A. Gosar (R-AZ), former New York City Mayor Rudolph Giuliani, and the president’s son, Donald Trump Jr., delivered inflammatory remarks, driving home the theme that the election was “stolen” and the outcome must be corrected, even if via “trial by combat.”[136]
In summary, the advocacy element of the Brandenburg test was satisfactorily demonstrated by Trump’s repeated expressions of grievance regarding the legitimacy of the 2020 election results, his role in helping plan and promote the “Save America” rally, and his and his surrogates’ clarion calls for supporters who showed up to march to the Capitol in order to stop the certification process. His advocacy was successful to a degree, from his perspective, since the rally was attended by thousands of supporters, many of those whom not only cheered him on but proceeded to Capitol Hill to convey this message.
B. Incitement
As the final speaker at the rally, Trump hammered home the message of a “stolen election,” proclaiming that, “We will never give up, we will never concede. It doesn't happen. You don't concede when there's theft involved,” and repeatedly encouraging supporters to stop the alleged electoral injustice: “You’ll never take back our country with weakness. You have to show strength, and you have to be strong.”[137] As indicated earlier in this article, he directed the rally-goers to “fight like hell” and march down Pennsylvania Avenue to the U.S. Capitol to prevent Congress from completing its constitutionally-required responsibility of certifying the electoral votes.[138] This was neither hypothetical nor hyperbole. He urged the crowd to act, that together they could stop the certification process:
And after this, we're going to walk down, and I'll be there with you, we're going to walk down, 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.[139]
The quote above contains multiple references to “we” and one reference to “I,” meaning the president himself, would be leading the crowd in their march to the Capitol to “Save America.” Trump continued to admonish supporters that it was time to take action to correct what he and they perceived as political corruption and injustice: “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, far longer than this four-year period.”[140]
According to federal law, incitement refers to the act of persuading another individual or individuals to engage in criminal conduct. As the most challenging of the three factors to satisfy, the context of speech surrounding an event must be considered in light of the concept of incitement as set forth in Brandenburg. Professor Sweeny provided conceptual foundation regarding the contours of incitement; that is, speech which does not contribute to the marketplace of ideas. She summarized that:
The violence caused by incitement prevents any competing speech from occurring, so there can be no reasoned debate on the topic. In other words, incitement is considered low-value speech, not necessarily because of the words used, but because the cost of the speech is so high.[141]
It could be persuasively argued that Trump’s speech—his words at the rally, as well as prior to and immediately after his supporters stormed the Capitol—incited the violent criminal conduct. He encouraged the protestors to attend the rally, tweeting “Be there, will be wild!” and “StopTheSteal,”[142] and once there called them to action by declaring that the nation is “under siege” and “you’ll never take back our country with weakness. You have to show strength and you have to be strong.”[143] These statements may be considered both advocacy and incitement as he was promoting a defined cause and exhorting others to act, even unlawfully, in accordance with that cause.
According to Professor Rubenfeld, Brandenburg should be best understood as a test to “determine whether an individual intentionally used speech so closely and directly engaged with a particularized course of prohibited conduct that the individual may be treated as having participated in that conduct.”[144] Trump concluded his speech at 1:10 p.m. by telling the crowd: “So we’re going to, we’re going to walk down Pennsylvania Avenue. I love Pennsylvania Avenue. And we’re going to the Capitol…”[145] While he did not accompany the crowd, the President led them to believe that he would and stated that it was time to go. The protesters listened to and acted upon his words. As opposed to the circumstances in the Hess[146] case, where the Court said the First Amendment protected speech since it was not directed at any particular individual or group of protestors, the gathering at the Ellipse was assembled for a well-defined purpose. Trump was the keynote speaker who directed them toward a course of action.
It is important to note that Trump’s speech is categorically different than that in previous Brandenburg relevant cases in terms of the tonal quality and quantity of potentially inciteful rhetoric in question. In all his remarks, only once in his torrent of inflammatory expressions did he call for protests to remain peaceful, noting: “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”[147] As opposed to the Nwanguma v. Trump[148] decision in 2018, this incident followed months of a concerted, relentless, orchestrated drumbeat barrage of incendiary remarks wherein he drops in one word about non-violence before immediately pivoting back to imagery of violence and warfare—such as the country being “under siege.”
In Congressional testimony, F.B.I. Director Wray identified three groups of participants involved in the January 6, 2021 rally and subsequent siege, two of which were incited to action by Trump’s words. The first group were largely peaceful, “maybe rowdy,” but not violative of the law. The second group had come to protest peacefully but were “either swept up in the motives, or emotion, or whatever, engaged in kind of low-level criminal behavior.”[149] The third group, the smallest numerically, were the most serious in that they “clearly came to Washington, we now know, with plans and intentions to engage in the worst kind of violence we would consider domestic terrorism.”[150]
Some protestors filed out of the Ellipse area and headed toward the Capitol while Trump was still speaking. After he concluded, many more protesters made their way there, where they merged with those who had already assembled on the Capitol grounds.[151] What happened next has been well documented as unprecedented—a violent mass effort aimed at preventing the functioning of American democracy.[152] The mob of angry protesters physically encountered and battled with police outside the building. By 2:15 p.m., they had broken windows, pulled doors off hinges, and entered the Capitol building.[153] A large group occupied the West entrance. Five minutes later, at 2:20, both houses of Congress were forced to adjourn, haphazardly postponing debate over the certification of the electoral votes, in a desperate effort to move members to secure locations.[154] Rioters soon breached the Senate chamber, including one person who was captured on camera scaling down the walls.[155] They were unsuccessful in their efforts to break into the House of Representatives as Capitol police, with guns drawn, stood guard behind barricaded doors.[156]
Around this time, at 2:24 p.m. (one hour and 14 minutes after he spoke at the “Save America” rally), President Trump published the following tweet about Vice President Mike Pence, who he incorrectly claimed had the authority, as Presiding Officer of the Senate, to overrule the states’ electoral count:
Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth![157]
This single tweet could be appropriately characterized as incitement. One protestor, at least, used a bullhorn to read it out loud, which prompted the crowd to call for the death of the Vice President, chanting “Hang Mike Pence!” and “Bring Out Pence.”[158] According to the impeachment prosecution team, several rioters were within one minute of physically confronting Pence.[159]
Trump knew what was occurring at the Capitol.[160] As President and Commander in Chief, he would have been informed immediately when a national crisis strikes, especially one unfolding about two and half miles from the White House and, in this case, one that he had shown to have a vested, deep personal interest in. The rioters’ efforts to try to find and harm Vice President Pence, who was whisked away to a secure location, not only reflects incitement but shows the actual danger that was triggered based on the tweet. Yet Trump did not demand the crowd disperse nor did he make any effort, on Twitter or otherwise, to stem the violence and law-breaking. He was at the White House monitoring the situation but remained publicly silent for one hour and fourteen minutes as the violence unfolded at the Capitol.[161]Finally, at 2:38 p.m., he tweeted a general message of support for the Capitol Police and law enforcement, along with encouragement to “Stay peaceful!”,[162] a tepid admonition, at best, which had already been demonstrably violated based on the behavior of the protesters. In prepared remarks before the House Oversight Committee, on May 12, 2021, the Acting Secretary of Defense under Trump further confirmed Trump’s inaction to stem the violence.[163]
In the aftermath of the riot, Capitol Hill police worked to clear the building and grounds. Finally, at 6:01 p.m. (nearly five hours after the Save America rally concluded), the President tweeted his support for those who participated in the siege and even provided justification for their cause of action:
These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!...Go home. We love you. You’re very special.[164]
Twitter subsequently removed this tweet and two others, and locked Trump’s account for twelve hours, citing “unprecedented and ongoing violent situation in Washington, D.C” and the company’s “Civic Integrity or Violent Threat” policies.[165] Guy Rosen, Vice President of Facebook, announced that the President’s video telling the rioters they were loved had been removed from that platform as well, citing an “emergency situation.”[166]
Instead of criticizing the criminality and demanding that those who executed this violent assault on people, property, and American democracy be held accountable, Trump’s tweet reflected tacit support for those who attacked the Capitol and their guiding mission. Rather than admonishing their behavior, he expressed his love and support. A week after the Capitol siege, House Minority Leader Kevin McCarthy (R-CA) noted from the House Floor ‘The President bears responsibility for Wednesday's attack on Congress by mob rioters. He should have immediately denounced the mob when he saw what was unfolding.”[167] In fact, the president has never demanded the rioters be held accountable for their actions at the Capitol. He never discussed the physical damage or the injuries to Capitol Hill police or the death of one officer, nor expressed personal concern for the members of Congress whose lives were under threat.[168]
Using the Brandenburg rubric as framework for analysis, Trump incited, at least implicitly, the crowd to act. He did this with his speech at the rally – the culminating public gathering which followed months of inflammatory rhetoric. His words there included an explicit exhortation for supporters to join him in marching to the Capitol to stop the certification, followed by communication on Twitter, including one message about Vice President Mike Pence, in particular. All this was followed by extensive radio silence which could reasonably be interpreted as tacit approval for the criminal conduct.
C. Imminence of Violent Action
The Court, in Brandenburg, built on the ruling in Schenk v United States, in asserting that the question of when speech may be rightfully regulated is one of “proximity and degree.”[169] In this case, the temporal immediacy between speech and action is clear. Hundreds of Trump’s supporters who attended the “Save America” rally began filing out and marching toward the Capitol before it concluded. A Department of Defense timeline indicated that the Acting Secretary of Defense received reports of “demonstrator movements” at 1:05 p.m., which was five minutes before Trump concluded his speech.[170] Many more followed, heeding Trump’s directive.
By 1:16 p.m., six minutes after his remarks were finished, law enforcement radio traffic reveal that police were “authorizing hard gear,” reporting multiple injuries, and calling for backup.[171] Law enforcement was heard sounding the alarm over the police radio: “Be advised. The speech ended.”[172] Capitol Police ordered evacuation of the complex at 1:26 p.m.[173] By 1:44 p.m., protesters had penetrated the scaffolding and breached police lines on the west (Senate) side of the Capitol.[174] Congress was hastily adjourned, and members evacuated for their safety at 2:20 p.m.[175] Eight minutes later, at 2:28 p.m., police announced “We’ve lost the line!”[176] Nearly an hour and a half later, at 4:08 p.m., Vice President Pence reportedly calls the Acting Secretary of Defense from his secure location alerting him of continued unrest, demanding a timeline for assistance and that they “Clear the Capitol.”[177] Finally, the Capitol Building was declared secure at 8:00 p.m., a full eight hours after Trump’s speech began.[178]
The act of immediately marching a mile and a half down Pennsylvania Avenue, from the rally to the scene of the siege, is the decisive factor—one regarding timing—needed to demonstrate imminence. In NAACP v. Claiborne Hardware Co., Justice Stevens stated that speech was protected since “there is no evidence…that Evers authorized, ratified, or directly threatened acts of violence” and, importantly, violence did not follow immediately after speech.[179] This is in clear contrast with the facts related to the rally and subsequent Capitol siege on January 6, 2021.
Trump’s tweet (at 2:24 p.m.) about Vice President Pence and the reaction by the protesters is further illustrative of incitement to imminent violent action. He spoke and protesters responded immediately.[180] This tweet was relayed and amplified by at least one protester. One minute later, McCarthy ordered his staff to prepare the emergency reaction force, and three minutes after that (at 2:28 p.m.) “the police line holding back the rioters is overtaken as the crowd takes over the lower terrace of the U.S. Capitol Building.”[181] In sum, a mob on a mission looking for the vice president followed Trump's rhetoric. This satisfies the Brandenburg imminence standard.
IV. Assessing States of Mind: Trump’s Mens Rea and the Motivation of the Rioters
A. Trump’s Mens Rea
As Professor Clay Calvert noted, mens rea is a critical factor when considering the culpability of a speaker for inciting violence or criminal conduct.[182] Accordingly, it is necessary to demonstrate that a person communicated with the intent to instigate violent or illegal action from his or her words to satisfy the heavy burden required by the Brandenburg test and thereby deem that the speech be moved to unprotected status under the First Amendment. Indeed, intent is a central reason why imminence flows from incitement. Wilson and Kiper similarly asserted that “(t)he mens rea of incitement resides in the direct advocacy of a crime, but advocacy is benign unless it occurs in a hazardous setting where there is a heightened probability that the crime will be committed imminently.”[183]
In this case, Trump’s state of mind is clear from the facts discussed earlier in this article. He forcefully advocated for the political cause which motivated the “Save America” rally and spoke vociferously about the need to fight for this cause. Trump’s tweets about a stolen election and encouragement that his supporters come to the “Save America” rally and then march to the Capitol to stop the electoral process set the stage for what he surely expected could, or would, follow. While it may be unclear if Trump was aware of Giuliani’s overt reference to “combat,” he was captured on video watching the rally prior to taking the stage.[184] In his speech, Trump referred to Giuliani’s courage. “And Rudy, you did a great job. He’s got guts. You know what? He’s got guts, unlike a lot of people in the Republican Party, he’s got guts, he fights, he fights.”[185]
The facts reflect Trump’s mindset. He promoted “the Big Lie” and urged his supporters to take action. They did. His silence for over one hour after the siege began and the Capitol breached, his tweet about Vice President Pence, his tepid initial response and subsequent refusal to speak out against the events of that day reflect his state of mind. At the impeachment trial, Representative Madeleine Dean summed it up, arguing,
This was not one speech. This was a deliberate, purposeful effort by Donald Trump over many months that resulted in the well-organized mob attack on January 6 … Donald Trump knew the people he was inciting leading up to January 6. He saw the violence they were capable of. He had a pattern and practice of praising and encouraging supporters of violence, never condemning it.[186]
Professor Calvert argued that, when assessing whether incitement standards should apply, it is important to consider the speaker’s “understanding of the audience’s state of mind,” as well as the “speaker’s knowledge of prior responses to words.”[187] To be sure, January 6, 2021 was not an isolated incident but rather the chaotic culmination of a protracted pattern that many observers and critics of the Trump movement saw coming. It is more than reasonable to assume that Trump saw this coming as well. Social science studies have documented the strong connection between his inflammatory rhetoric and political violence, a reflection of what has been referred to as “the normalization of meta-violence.”[188] In particular, Brigitte Nacos, Robert Schapiro and Yaeli Block-Elkon found that “Trump’s aggressive, divisive, and dehumanizing language was seconded by his followers and inflicted directly or indirectly psychological and physical harm to Trump’s declared enemies.”[189] Media outlets have also identified many incidents and more than 50 legal cases invoking Trump in connection with “violence, threats, and alleged assaults.”[190]
During the Impeachment trial, Representative Jaime Herrera Beutler (R-WA) recounted a conversation with Minority Leader Kevin McCarthy who had told her he spoke to Trump as the chaotic events of January 6 were unfolding, in a desperate effort to convince him to send out a forceful message to help stop the Capitol siege. According to Beutler, McCarthy said he first refuted Trump’s false claim that those who were fighting with Capitol police and vandalizing the building were “anti-fascists.” After informing Trump that these were his supporters, the President responded, “Well, Kevin, I guess these people are more upset about the election than you are.”[191] McCarthy has since refused to deny this conversation happened as reported.[192] Professor Laurence Tribe summed up Trump’s mens rea: “This guy was inciting not just imminent lawless action, but the violent decapitation of a coordinate branch of the government, preventing this peaceful transition of power and putting a violent mob into the Capitol while he cheered them on.”[193]
B. Rioters Cite Trump as Their Defense
It is also important to consider the mindset and motivation of those who received Trump’s communication and subsequently engaged in illegal and/or violent conduct. At the impeachment trial, Representative Joaquin Castro (D-TX) argued that “[President Trump’s] supporters used armed force to try to disrupt the lawful counting of votes because they bought into Trump’s Big Lie that the election was stolen from them.”[194] Similarly, Representative Diana DeGette (D-CO) stated, “They truly believed that the whole intrusion was at the president’s orders, and we know that because they said so.”[195] Indeed, evidence shows that on the day of the rally and subsequent siege, protesters justified their actions with claims such as “We were invited here! We were invited by the president of the United States!”[196] and “You’re outnumbered, there are a [expletive] million of us out there. And we are listening to Trump—your boss!”[197] They expressed combative determination with cries such as “Take their shields,” “Our house,” and “We want Trump!”[198]
According to records by the U.S. Department of Justice, more than 700 individuals have been charged by federal prosecutors for unlawful actions surrounding the events of January 6, 2021.[199] Many claimed in their defense that they stormed the Capitol because President Trump told them to do it.[200] One defendant, Emanuel Jackson, cited Trump’s statements at the rally and charges related to the president’s impeachment as a legal defense. His pre-trial memorandum reads, in relevant part:
[T]he nature and circumstances of this offense must be viewed through the lens of an event inspired by the President of the United States. On January 7, 2021, Articles of Impeachment were lodged against the President for willfully making “statements that encouraged—and foreseeably resulted in—imminent lawless action at the Capitol.[201]
Another defendant, William Chrestman, a member of the Proud Boys militia in Kansas, also defended his actions by pointing to Trump’s words as well as then-Senate Majority Leader Mitch McConnell’s condemnation of the President.[202] In particular, Chrestman’s attorney cited Trump’s tweet from January 6, 2021 at 6:01 p.m. that stated the Capitol siege was not surprising when a “sacred landslide election victory is unceremoniously & viciously stripped away . . .”[203] The defense attorney further referred to precedent from Raley v. Ohio, a 1959 Supreme Court case involving civil liberties and the Un-American Activities Commission, arguing that the rioters were actively misled and “entrapped” by “the voice of the state.” [204] The defense memorandum stated:
Trump told the assembled rabble what they must do; they followed his instructions. Then, he ratified their actions, cementing his symbiotic relationship with the rioters . . . Trump’s incitement and enablement of this insurrectionary riot weighs heavily against the weight of the evidence prong, because the mob was given explicit permission and encouragement by the former President to do what they did.[205]
Similarly, Jacob Chansley, the defendant and self-proclaimed shaman with a horned-helmet and painted face who was photographed sitting in the House Speaker’s Chair earlier occupied by Vice President Pence as he presided over the proceedings, claimed that he was following Trump’s directives. He left a note which read, “[I]t’s only a matter of time, justice is coming.”[206] According to his attorney, Chansley was “answering the call of our president.”[207] Prosecutors, in turn, have argued that he was in the Capitol in order to “obstruct” and “impede” the work of Congress as it certified the electoral votes.[208]
V. Conclusion
The U.S. Supreme Court, in Brandenburg v. Ohio, outlined circumstances for when speech incites violent or criminal conduct and is therefore no longer protected under the First Amendment. This article explored how the speech test emanating from that ruling may be applied to President Trump’s communication and the mob’s subsequent siege at the U.S. Capitol on January 6, 2021. As demonstrated herein, the three critical elements—speech as advocacy, incitement, and imminence—are satisfied. In public statements and messages transmitted from his digital platform on Twitter, Trump incessantly promoted “the Big Lie” and directed his supporters to mobilize and attend the “Save America” rally. His command to “fight like hell” for his cause created a combustible cauldron of anger and desperation among loyalists which culminated at the rally and in the violent conduct and criminal action that followed.
It is true that the application of the Brandenburg speech test is a challenging task of constitutional jurisprudence, which is reflected in limited number of instances in which it has been used. As Wilson and Kiper noted: “context is everything…it is now received wisdom that, ‘the character of every act depends upon the circumstances in which it is done.’”[209] That said, since Brandenburg is the current standard provided to us by the Court, and precedent adopted by federal judges and the U.S. Department of Justice, it is appropriate to determine whether and how it applies to this particular set of circumstances.
The facts laid out in this article do not reflect theoretical pontifications about if and how First Amendment guarantees apply, generally speaking, to public speech and violence or criminal activity. Nor do they refer to a case in which no actual violence or criminality occurred, such as is alluded to in Justice Douglas’s concurring opinion in Brandenburg when he wrote that “The threats were often loud but always puny and made serious only by judges so wedded to the status quo that critical analysis made them nervous.”[210] Indeed, this is an active case and the speech-incitement doctrine is ripe for clarification. In a legal filing, attorneys for the Department of Justice report that “the investigation and prosecution of the Capitol Attack will likely be one of the largest in American history, both in terms of the number of defendants prosecuted and the nature and volume of the evidence.”[211] They further refer to the “unusual” and “complex” circumstances “due to the number of defendants, the nature of the prosecution, or the existence of novel questions of fact or law.”[212]
Representative Lynn Cheney, then G.O.P. Conference Chair and one of ten Republicans who voted to impeach Trump for incitement of Capitol insurrection, has signaled the need for accountability. When asked about charging Trump, she noted: "That's a decision that the Justice Department is going to have to make...There are ongoing criminal investigations, and those will play out."[213] Cheney’s sentiment echoes that which was expressed by then Senate Majority Leader McConnell after the impeachment vote. He asserted: “[Trump] didn’t get away with anything yet—yet. We have a criminal justice system in this country. We have civil litigation, and former Presidents are not immune from being accountable by either one.”[214] The House of Representatives voted to approve a bipartisan commission to investigate the attack on the Capitol complex.[215] After the effort to impanel an independent commission failed,[216] the U.S. House of Representatives formed a Select Committee which includes both Democratic and Republican members.[217]The Committee issued a statement forcefully refuting McCarthy’s “baseless” claim that the F.B.I. had concluded Trump “did not cause, incite, or provoke the violence on January 6th.”[218]
Meanwhile, Trump has continued to promulgate incendiary rhetorical claims of a fraudulent election and, in at least one case, his speech has played an active role in the denial of a defendant’s request for bail.[219] In May 2021, on the eve of her removal from her leadership position in Congress for challenging Trump’s dangerous assertions, Representative Cheney stood defiant and sounded the alarm yet again: “A former President, who provoked a violent attack on this Capitol in an effort to steal the election, has resumed his aggressive effort to convince Americans that the election was stolen from him. He risks inciting further violence.”[220]
The fact that Cheney refers to the “former president” is important, as some legal scholars are suggesting free speech protections should be lower for high public officials, such as presidents, than for private citizens.[221] For example, Wilson and Kiper highlighted “The Attributes of the Speaker” as an important consideration when evaluating speech and incitement. Two of their proposed criteria refer to whether “[t]he speaker occupies an official position of authority within government or a political party or political movement” and whether “The speaker is perceived by supporters as credible or charismatic.”[222] Regarding this case, in particular, Harvard University law professor Einer Elhauge argued that “even if one wrongly thought Trump’s incitement would be protected under the First Amendment if he were a private citizen, his incitement should not be protected given his role as president.”[223]
In conclusion, holding Trump personally responsible for the Capitol siege could establish a precedent of constitutional jurisprudence, applicable to future relevant cases of speech and incitement. In the current era of movement politics, rhetoric often leads to political protest on both the ideological left and right, some of which may cross the line of incitement to violence. This is especially true given that massive audiences increasingly transmit and receive communication in both face-to-face and virtual (social media) contexts via digital media platforms. Advocacy for political change and direct action among organized collections of people are commonplace in democratic societies. In the United States, these activities are protected under the First Amendment. However, when individuals deploy speech in order to incite others to commit violent or illegal acts, Brandenburg remains the constitutional calculus that guarantees a balance between freedom of speech and accountability for those whose speech instigate unlawful conduct.
EDITOR'S NOTE: This article was originally published as "'We Fight Like Hell': Applying the Brandenburg Test to Trump’s Speech Surrounding the Siege at the U.S. Capitol" in Volume XII, Issue II of The Criminal Law Practitioner. Due to formatting restrictions in this digital format, not all Bluebook formatting may be observed in the below footnotes.
-- [1] See #StopTheSteal: Timeline of Social Media and Extremist Activities Leading to 1/6 Insurrection (Feb. 10, 2021), https://www.justsecurity.org/74622/stopthesteal-timeline-of-social-media-and-extremist-activities-leading-to-1-6-insurrection/ (the event has also been referred to as the “March to Save America,” the “Stop the Steal” rally, and promoted as a “March for Trump”). [2] National Archives, 2020 Electoral College Results, https://www.archives.gov/electoral-college/2020 (last visited Mar. 25, 2021). [3] Naylor, Brian, Read Trump's Jan. 6 Speech, A Key Part Of Impeachment Trial, NPR (Feb. 10, 2021), https://www.npr.org/2021/02/10/966396848/read-trumps-jan-6-speech-a-key-part-of-impeachment-trial. [4] Clare Hymes, Cassidy McDonald, and Eleanor Watson, What we know about the “unprecedented” Capitol riot arrests, CBS News, (March 25, 2021), https://www.cbsnews.com/news/capitol-riot-arrests-2021-03-25/. [5] Steve Doig, It is difficult, if not impossible to estimate the size of the crowd that stormed Capitol Hill, The Conversation (Jan. 8, 2021), https://theconversation.com/it-is-difficult-if-not-impossible-to-estimate-the-size-of-the-crowd-that-stormed-capitol-hill-152889 (estimating the crowd that breached the Capitol by assuming five square feet of space to each person and then applying that to the total size of the west front of the Capitol where the crowd gathered). [6] Elaine Godfrey, It Was Supposed to be So Much Worse, The Atlantic (Jan. 9, 2021). https://www.theatlantic.com/politics/archive/2021/01/trump-rioters-wanted-more-violence-worse/617614/ (noting a makeshift gallow with noose had been erected and pipe bombs and other weapons stashed near the Capitol). [7] Bill Chappell, Architect of the Capitol Outlines $30 Million in Damages From Pro Trump Riot, NPR (Feb. 24, 2021), https://www.npr.org/sections/insurrection-at-the-capitol/2021/02/24/970977612/architect-of-the-capitol-outlines-30-million-in-damages-from-pro-trump-riot. [8] See Capitol Breach Chart, (last visited Dec. 2, 2021) https://www.justice.gov/usao-dc/capitol-breach-cases. [9] Devlin Barrett, Abigail Hauslohner, Spencer Hsu, and Ashlyn Still, A sprawling investigation: What we know so far about the Capitol riot suspects, Wash. Post (May 13, 2021) https://www.washingtonpost.com/nation/interactive/2021/capitol-riot-arrests-investigation/. [10] See Trump v. Thompson, Civil Action No. 21-cv-2769 (TSC), 2021 U.S. Dist. LEXIS 216812 (D.D.C. Nov. 9, 2021). [11] See Trial Memorandum of the United States House of Representatives in the Impeachment Trial of President Donald J. Trump, 22-29, https://www.congress.gov/bill/117th-congress/house-resolution/24/text (2021) (showing the U.S. House of Representatives impeached Trump by a vote of 232 year to 197); Roll Call Vote 117th Congress – 1st Session, https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=117&session=1&vote=00057 (2021) (showing President Trump was subsequently acquitted in the Senate by a vote of 56 to 44). [12] Cheney: I Will Vote To Impeach The President, https://cheney.house.gov/2021/01/12/cheney-i-will-vote-to-impeach-the-president/ (Jan. 12, 2021). [13] Senator Mitch McConnell, Remarks After Impeachment Vote (Feb. 13, 2021), https://www.rev.com/blog/transcripts/mitch-mcconnell-speech-transcript-after-vote-to-acquit-trump-in-2nd-impeachment-trial. [14] Seb Walker, Even Trump’s Secretary of Defense During the Capitol Riot Blames Him for Inciting It, Vice, (Mar. 11, 2021), https://www.vice.com/en/article/wx83v4/even-trumps-defense-secretary-during-the-capitol-riot-blames-him-for-inciting-it. [15] Brandenburg v. Ohio, 395 U.S. 444 (1969). [16] Id. Authors’ italics are used to emphasize key elements of the 1969 Brandenburg v. Ohio ruling by the Supreme Court. [17]See ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 1038 (5th ed. 2015). [18] 395 U.S. 444 (1969). [19]167 Cong. Rec. S594 (daily ed. Feb. 9, 2021) (statement of Rep. Joe Neguse: “While spreading lies about the election outcome, in a brazen attempt to retain power against the will of the American people, he incited an armed, angry mob to riot—and not just anywhere but here in the seat of our government, in the Capitol, during a joint session of Congress, when the Vice President presided while we carried out a peaceful transfer of power, which was interrupted for the first time in our history.”). [20] Richard Ashby Wilson & Jordan Kiper, Incitement in an Era of Populism: Updating Brandenburg After Charlottesville, 5 U. Pa. J. L. & Pub. Aff. 189 (2020). [21] 18 U.S.C. § 373(a) (2018) (Solicitation to Commit a Crime of Violence) (“Whoever, with intent that another person engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force against property or against the person of another in violation of the laws of the United States, and under circumstances strongly corroborative of that intent, solicits, commands, induces, or otherwise endeavors to persuade such other person to engage in such conduct, shall be imprisoned not more than one-half the maximum term of imprisonment or (notwithstanding § 3571) fined not more than one-half of the maximum fine prescribed for the punishment of the crime solicited, or both; or if the crime solicited is punishable by life imprisonment or death, shall be imprisoned for not more than twenty years.”). [22] 18 U.S.C. § 373(b) (2018) (Solicitation to Commit a Crime of Violence) (“It is an affirmative defense to a prosecution under this section that, under circumstances manifesting a voluntary and complete renunciation of his criminal intent, the defendant prevented the commission of the crime solicited. A renunciation is not “voluntary and complete” if it is motivated in whole or in part by a decision to postpone the commission of the crime until another time or to substitute another victim or another but similar objective. If the defendant raises the affirmative defense at trial, the defendant has the burden of proving the defense by a preponderance of the evidence.”). [23] 18 U.S.C. § 2101 (2018). [24] 18 U.S.C. § 2101(a) (2018) (“Whoever travels in interstate or foreign commerce or uses any facility of interstate or foreign commerce, including, but not limited to, the mail, telegraph, telephone, radio, or television…”). [25] D.C. Code § 22-1322(a) (2013) (defining a riot in the District of Columbia as “[A] public disturbance involving an assemblage of 5 or more persons which by tumultuous and violent conduct or the threat thereof creates grave danger of damage or injury to property or persons.”). [26] D.C. Code § 22-1322(d) (2013) (“If in the course and as a result of a riot a person suffers serious bodily harm or there is property damage in excess of $5,000, every person who willfully incited or urged others to engage in the riot shall be punished by imprisonment for not more than 10 years or a fine of not more than the amount set forth in § 22-3571.01, or both.”). [27] 395 U.S. 444 (1969). [28] Id. at 444-45 (finidng the Ohio Criminal Syndicalism statute criminalized “advocat[A][ing]…the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform…”) (banning the “voluntarily assembl[ing] with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism…”). [29] Id. at 445. [30] Id. [31] Id. [32] Id. at 446. [33] Id. at 447. [34] Id. [35] Id. at 448. [36] Id. at 447. [37] Clay Calvert, First Amendment Envelope Pushers: Revisiting the Incitement-to-Violence Test with Mssrs. Brandenburg, Trump & Spencer, 51 Conn L. Rev. 117, 130 (2019). [38] Id. [39] Richard Ashby Wilson and Jordan Kiper, Incitement in an Era of Populism: Updating Brandenburg After Charlottesville, 5 U. Pa. J. L. & Pub. Aff. 57, 72 (2020). [40] Schneck v. United States, 249 U.S. 47 (1919) (upholding an Espionage Act conviction against Charles Schenck for distributing leaflets opposing the military draft. Few military draftees actually received the leaflets, and those who did testified that it did not influence their decision to join the military. According to the Court, Schenck’s words were of such a nature as to present a “clear and present danger,” and that they would have brought about “substantive evils” to the country that Congress had the right to protect the government). See Richard Pollenberg, Fighting Faiths: The Abrams Case, the Supreme Court, and Free Speech 215 (Viking Penguin, Inc. 1987). [41] The government indicted Jacob Abrams with four counts of violating the 1918 Sedition law. Each count revolved around resisting the American war effort. The first three indictments were based on conspiring during wartime to unlawfully print, write, and publish literature against the U.S. government in an attempt to bring contempt and scorn to it as well as lead the resistance against the U.S. war effort. The government’s fourth charge indicted Abrams for publishing leaflets that attempted to incite Americans to stop producing war materials such as ammunition. The Court found Abrams guilty on all four counts. [42] In Gitlow, the Court cited its bad-tendency test. Under this test, expression could be punished if it presented a “tendency” to cause evil. The defendant, Benjamin Gitlow, was found guilty of publishing a manifesto for the Socialist Party in New York. In Gitlow, the Court ruled that the First Amendment does not protect speech that attempts to subvert government and disturbs the public peace. It also deferred to the legislature to determine if a law is necessary to protect society from a “present and imminent danger.” [43] In Schenck, Abrams, Gitlow, and other World War I era speech decisions, the Supreme Court outlined when the “clear and present danger” legal test applied to speech controversies. [44] Richard Ashby Wilson and Jordan Kiper, Incitement in an Era of Populism: Updating Brandenburg After Charlottesville, 5 U. Pa. J. L. & Pub. Aff. 57, 70 (2020). [45] Rodney A. Smolla, Should the Brandenburg v. Ohio Incitement Test Apply in Media Violence Cases?, 27 N. Ky. L. Rev. 1, 12 (2000). [46] Id. at 13. [47] 395 U.S. at 448. [48] Id. at 447. [49] Id. [50] Id. [51] Id. at 445. [52] Id. at 449. [53] Id. [54] This is where the Brandenburg test differs from the Court’s earlier Clear and Present Danger rulings. In this case, the Court ruled that speech loses its First Amendment protection if violence is imminent based on incitement. In Schenck, Abrams, and Gitlow, the Court’s rulings did not have imminent violence in mind; rather it was geared toward prohibiting speech that posed a clear and present danger to a peaceful environment. [55] 395 U.S. at 448-49. [56] Id. at 457. [57] Id. at 454. [58] Id. at 456-57. [59] Rodney A. Smolla, Should the Brandenburg v. Ohio Incitement Test Apply in Media Violence Cases?, 27 N. Ky. L. Rev. 1, 10 (2000). [60] Alan K. Chen, Free Speech and the Confluence of National Security and Internet Exceptionalism, 86 Fordham L. Rev. 379 (2017). [61] David Crump, Camouflaged Incitement: Freedom of Speech, Communicative Torts, and the Borderland of the Brandenburg Test, 29 Ga. L. Rev. 1, 51 (1994). [62] Marc Rohr, Grand Illusion? The Brandenburg test and Speech That Encourages or Facilitates Criminal Acts, 38 Willamette L. Rev. 1, 14-15 (2002). [63] Id at 19. [64] Id. [65]Hess v. Indiana, 414 U.S. 105 (1973). [66] Id. at 107 (noting two versions of Hess’s statement were entered into evidence, and one witness claimed he said “later” and the other claimed he said “again” at the end of the sentence). [67] Id. at 105 (noting that Ind. Code 35-27-2-1 applied to anyone who acted in a “loud, boisterous or disorderly manner so as to disturb the peace and quiet of any neighborhood or family by loud or unusual noise, or by tumultuous or offensive behavior, threatening, traducing, quarreling, or challenging to fight or fighting, shall be deemed guilty of disorderly conduct…”). [68] Id. at 107. [69] Id. [70] Id. at 108. [71] Id. [72] Clay Calvert, First Amendment Envelope Pushers: Revisiting the Incitement-to-Violence Test with Mssrs. Brandenburg, Trump & Spencer, 51 Conn L. Rev. 117, 133 (2019). [73] 414 U.S. at 107 (1973). [74] Id. at 108. [75] Id. [76]NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982). [77] Id. at 889. [78] Id. at 909 (holding that the boycott was constitutionally protected activity since it was based on seeking political changes in the community due to perceived racial injustices); id. at 912 (finding the First Amendment right to protest was used for political change rather than as an economic weapon); id. at 919 (holding civil liability cannot be imposed on individuals who belonged to a group and when the group, as a whole, committed acts of violence; authorities must prove that the specific suspect had intent to break the law). [79] Id. at 927. [80] Id. at 934-940 (noting controversial phrases such as, “When you kill our brothers and our sisters and rape our wives and our friends. You’re guilty. You’re guilty because you don’t care a thing about anybody” and “If you come on beating us, we are going to fight back.”). [81] Id. at 928. [82] Id. [83] Id. [84] Id. [85] Id. at 914. [86] Id. at 915. [87] Id. at 928. [88] Id. [89] Rice v. Paladin Enters, 128 F.3d 233 (4th Cir. 1997). [90] Id. at 239. [91] Id. at 244. [92] Id. at 246. [93] Id. at 247. [94] Id. at 248. [95] See 128 F.3d at 248. See also U.S. v. Buttorff, 572 F.2d 619 (1978); U.S. v. Barnett, 667 F.2d 835 (1982); and U.S. v. Mendelsohn, 896 F.2d 1183 (1990). In each of these decisions, federal appellate courts ruled that the First Amendment could not be used as a legal defense for the commission of federal crimes. [96] 128 F. 3d at 249. [97] Id. at 248. [98] Id. at 249. [99] Id. [100] White v. Lee, 227 F.3d 1214 (9th Cir. 2000). [101] Id. at 1220. [102] Id. [103] Id. [104] Id. at 1228. [105] Id. [106] 584 F.3d 132 (3rd Cir. 2009). [107] Id. at 155. [108] Id. [109] Id. [110] Id. at 156. [111] Id. [112] John Cronan, The Next Challenge for the First Amendment: The Framework for an Internet Incitement Standard, 51 Cath. U. L. Rev. 425, 456(2002). [113] Lyrissa Lidsky, Incendiary Speech and Social Media 44 Tex. Tech. L. Rev. 148-149 (2011). [114] See e.g., Zachary Leibowitz, Terror on Your Timeline: Criminalizing Terrorist Incitement on Social Media Through Doctrinal Shift, 2 Fordham L. Rev. 795 (2017); JoAnne Sweeny, Incitement in the Era of Trump and Charlottesville 47 Cap. U. L. Rev. 585 (2019); and Russell L. Weaver, Brandenburg and Incitement in a Digital Era, 80 Miss. L. J. 1265-1266 (2011). [115] Clay Calvert, First Amendment Envelope Pushers: Revisiting the Incitement-to-Violence Test with Mssrs. Brandenburg, Trump & Spencer, 51 Conn L. Rev. 117, 124 (2019). [116] Alan K. Chen, Free Speech and the Confluence of National Security and Internet Exceptionalism, 86 Fordham L. Rev. 379, 380 (2017). [117] Margot Kaminski, Incitement to Riot in the Age of Flash Mobs, 81 U. Cin. L. Rev. 1, 78 (2013). [118] Donald Trump (@realdonaldtrump), Twitter (Jan. 6, 2021) https://www.thetrumparchive.com/. [119] 128 F.3d 233, 248 (4th Circ. 1997). [120] The House impeachment mangers termed the claim of a stolen election as “the Big Lie.” As Representative Joaquin Castro noted, “the most combustible thing you can do in a democracy is convince people that an election doesn’t count, that their voice and their vote doesn’t count and that it’s all been stolen—especially if what you’re saying are lies.” [121] See Twitter Profile Statistics, https://www.socialbakers.com/statistics/twitter/profiles/detail/25073877-realdonaldtrump.Twitter permanently suspended President Trump’s account on January 8, 2021 due to repeated spreading of misinformation, in violation of terms of service. His tweets are archived at https://www.thetrumparchive.com/. [122] See Oshkosh, Wisconsin campaign rally, (Aug. 18, 2020), https://www.youtube.com/watch?v=PR5VO9FAGDc. [123] President Donald Trump, White House Speech (Nov. 4, 2020), https://www.rev.com/blog/transcripts/donald-trump-2020-election-night-speech-transcript. [124] President Donald Trump, White House Speech (Dec. 2, 2020), https://www.rev.com/blog/transcripts/donald-trump-speech-on-election-fraud-claims-transcript-december-2. [125] Donald Trump, (@realdonaldtrump), Twitter (Dec. 5, 2020, 12:54 p.m.), https://www.thetrumparchive.com/?searchbox=%2225%2C+wow%21+I+am+surprised+there+are+so+many.+We+have+just+begun+to+fight.+Please+send+me+a+list+of+the+25+RINOS.+I+read+the+Fake+News+Washington+Post+as+little+as+possible%21+https%3A%2F%2Ft.co%2FcEBM0bYuQ9%22&results=1. [126] Donald Trump (@realdonaldtrump), Twitter (Dec. 12, 2020, 8:47 a.m.), https://www.thetrumparchive.com/?searchbox=%22WE+HAVE+JUST+BEGUN+TO+FIGHT%21%21%21%22&results=1. [127] Donald Trump, (@realdonaldtrump), Twitter (Dec. 26, 2020, 8:14 a.m.), https://www.thetrumparchive.com/?searchbox=%22The+%E2%80%98Justice%E2%80%99+Department+and+the+FBI+have+done+nothing+about+the+2020+Presidential+Election+Voter+Fraud%22&results=1. [128] Donald Trump, (@readonaldtrump), Twitter (Dec. 27, 2020, 5:51 p.m.), https://www.thetrumparchive.com/?searchbox=%22See+you+in+Washington%2C+DC%2C+on+January+6th.+Don%E2%80%99t+miss+it.+Information+to+follow.%22. [129] Donald Trump, (@readonaldtrump), Twitter (Jan. 1, 2021, 2:53 p.m.), https://www.thetrumparchive.com/?searchbox=%22The+BIG+Protest+Rally+in+Washington%2C+D.C.%22. [130] Donald Trump, (@readonaldtrump), Twitter (Jan. 1, 2021, 3:34 p.m.), https://www.thetrumparchive.com/?searchbox=%22A+great+honor%21+https%3A%2F%2Ft.co%2FU4WFBWrnF7%22. [131] A nonprofit 501(c)4 organization called “Women for America First,” led by Kylie Jane Kremer who also co-founded another group called “Stop the Steal” submitted the original application for permit to conduct a demonstration with the National Park Service on Dec. 29, 2020. https://www.nps.gov/aboutus/foia/upload/21-0278-Women-for-America-First-application_REDACTED.pdf [132] Anna Massagolia, Trump’s political operation paid more than $3.5 million to Jan. 6 organizers, OpenSecrets.org, (Feb. 10, 2021), https://www.opensecrets.org/news/2021/02/jan-6-protests-trump-operation-paid-3p5mil/?utm_source=twitter&utm_medium=social&utm_campaign=twitt_jan-6-tp35q-02/09/20; Will Steakin, John Santucci, and Katherine Faulders. Trump allies helped plan, promote rally that led to Capitol attack, ABC News, (Jan. 8, 2021),https://abcnews.go.com/US/trump-allies-helped-plan-promote-rally-led-capitol/story?id=75119209. [133] Trump repeatedly alleged that vote counts in Pennsylvania, Michigan, Wisconsin, Arizona and Georgia were fraudulent even as he lost state and federal court cases challenging such alleged fraud. His legal team initiated dozens of lawsuits yet won only one of the 62 cases filed, which was a minor victory limiting the number of days Pennsylvania voters could provide valid identification. William Cummings, Joey Garrison, and Jim Sergent, By the numbers: President Donald Trump's failed efforts to overturn the election, USA Today, (Jan. 6, 2021), https://www.usatoday.com/in-depth/news/politics/elections/2021/01/06/trumps-failed-efforts-overturn-election-numbers/4130307001/. [134] President Donald Trump, Georgia Run-Off Election Speech (Jan. 4, 2021) (transcript available at https://www.rev.com/blog/transcripts/donald-trump-rally-speech-transcript-dalton-georgia-senate-runoff-election). [135] Brian Naylor, Read Trump’s Jan. 6 Speech, A Key Part of Impeachment Trial, NPR, (Feb. 10, 2021), https://www.npr.org/2021/02/10/966396848/read-trumps-jan-6-speech-a-key-part-of-impeachment-trial. [136] Rudy Giuliani Speech, Save America rally (Jan. 6, 2021), https://www.rev.com/blog/transcripts/rudy-giuliani-speech-transcript-at-trumps-washington-d-c-rally-wants-trial-by-combat. [137] President Donald Trump, Save America rally (Jan. 6, 2021). See also Oshkosh, Wisconsin campaign rally, (Aug. 18, 2020), https://www.youtube.com/watch?v=PR5VO9FAGDc. [138] Id. [139] Id. [140] Id. [141] JoAnne Sweeny, Incitement in the Era of Trump and Charlottesville 47 Cap. U. L. Rev. 585, 595 (2019). [142] Donald Trump, (@realdonaldtrump), Twitter (Dec. 19, 2020, 1:42 AM), https://www.thetrumparchive.com/?searchbox=%22Be+there%2C+will+be+wild%22 (“…Big protest in D.C. on January 6th. Be there, will be wild!”); Donald Trump, (@realdonaldtrump), Twitter (Jan. 1, 2021), https://www.thetrumparchive.com/?searchbox=%22The+BIG+Protest+Rally+in+Washington%2C+D.C.%22 (“The BIG Protest Rally in Washington, D.C., will take place at 11.00 a.m. on January 6th. Locational details to follow. StopTheSteal!”). [143] Brian Naylor, Read Trump’s Jan. 6 Speech, A Key Part of Impeachment Trial, NPR (Feb. 10, 2021), https://www.npr.org/2021/02/10/966396848/read-trumps-jan-6-speech-a-key-part-of-impeachment-trial. [144] Jed Rubenfeld, The First Amendment's Purpose 53 Stan. L. Rev. 767, 829 (2000). [145] Naylor, supra note 143. [146] Hess, 414 U.S. 105; Read Trump’s Jan. Six Speech, A Key Part of Impeachment Trial, NPR. [147] Read Trump’s Jan. Six Speech, A Key Part of Impeachment Trial, NPR. [148] Nwanguama v. Trump, 903 F.3d 604 (2018). This civil case involved an incident at a Trump rally in Louisville, Kentucky in March 2016. Plaintiffs sued then-candidate Trump for inciting violent conduct by security personnel. The Sixth Circuit Court of Appeals ruled that although Trump said “Get ‘em out of here,” and that his speech is “powerful,” it was not demonstrated that the former president actually incited the aggression. Judge McKeague stated, “If words have meaning, the admonition ‘don’t hurt ’em’ cannot be reasonably construed as an urging to ‘hurt ’em.’” [149] FBI Director Christopher Wray, FBI Director, Testimony before the Senate Judiciary Committee (Mar. 2, 2021), https://www.rev.com/blog/transcripts/fbi-director-christopher-wray-testifies-on-capitol-attack-domestic-terrorism-full-hearing-transcript-march-2. [150] See Katie Benner, Alan Feurer and Adam Goldman, FBI Finds Contact Between Proud Boys Member and Trump Associate Before Riot, N.Y. Times(Mar. 5, 2021), https://www.nytimes.com/2021/03/05/us/politics/trump-proud-boys-capitol-riot.html (noting investigations are ongoing to determine the level of cooperation between Trump staff, rally organizers, and militia members in this third group). [151] Robin Stein, Haley Willis, Danielle Miller, and Michael S. Schmidt, ‘We’ve Lost the Line!’: Radio Traffic Reveals Police Under Siege at Capitol, N.Y. Times (Mar. 21, 2021), https://www.nytimes.com/video/us/100000007655234/weve-lost-the-line-radio-traffic-reveals-police-under-siege-at-capitol.html. [152] Bill Chappell, Architect of the Capitol Outlines $30 Million in Damages From Pro Trump Riot, NPR (February 24, 2021), https://www.npr.org/sections/insurrection-at-the-capitol/2021/02/24/970977612/architect-of-the-capitol-outlines-30-million-in-damages-from-pro-trump-riot. [153] Shelly Tan, Youjin Shin, Danielle Rindler, How one of America’s ugliest days unraveled outside and inside the Capitol. Wash. Post (Jan. 9, 2021), https://www.washingtonpost.com/nation/interactive/2021/capitol-insurrection-visual-timeline/. [154] Id. [155] Josiah Colt, from Meridian, Idaho was photographed hanging from the Senate balcony and subsequently falling to the floor. Marie Fazio, Notable Arrests After Riot at the Capitol, N.Y. Times (Jan. 10, 2021), https://www.nytimes.com/2021/01/10/us/politics/capitol-arrests.html. [156] Haley Talbot, Inside the House chamber as the Capitol was overrun by an angry mob, NBC (Jan. 9, 2021), https://www.nbcnews.com/politics/congress/inside-house-chamber-capitol-was-overrun-angry-mob-n1253640. [157] Donald Trump (@realdonaldTrump), Twitter (Jan. 6, 2021, 2:24 p.m.), https://www.thetrumparchive.com/?searchbox=%22Mike+Pence+didn%E2%80%99t+have+the+courage+to+do+what+should+have+been+done+to+protect+our+Country+and+our+Constitution%2C+giving+States+a+chance+to+certify+a+corrected+set+of+facts%2C+not+the+fraudulent+or+inaccurate+ones+which+they+were+asked+to+previously+certify.+USA+demands+the+truth%22 (echoing Trump’s remarks from the rally earlier which declared that the Vice President could unilaterally obstruct the electoral vote certification process). [158] Representative Joaquin Castro’s presentation to the US Senate during the impeachment trial day two part two (Feb. 10, 2021), https://www.congress.gov/117/crec/2021/02/10/CREC-2021-02-10-pt1-PgS615-4.pdf. [159] Watch Plaskett’s full presentation of previously unreleased riot footage, Wash. Post (Feb. 10, 2021), https://www.washingtonpost.com/video/politics/watch-plasketts-full-presentation-of-previously-unreleased-riot-footage/2021/02/10/1ebe0238-cac2-4a1d-9fb8-794136cf5da7_video.html. [160] Serfaty Sunlen, Devan Cole, and Alex Rogers. As riot raged at Capitol, Trump tried to call senators to overturn election, CNN (Jan. 8, 2021), https://www.cnn.com/2021/01/08/politics/mike-lee-tommy-tuberville-trump-misdialed-capitol-riot/index.html (indicating Donald Trump was informed in a phone call with Senator Tuberville that the Vice President was removed from the building for safety purposes twelve minutes prior to his tweet that “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution…” at 2:24 p.m.).See also Maggie Haberman and Jonathan Martin, After the Speech: What Trump Did as the Capitol Was Attacked N.Y. Times (Feb. 13, 2021), https://www.nytimes.com/2021/02/13/us/politics/trump-capitol-riot.html; Benjamin Hart, Trump’s Treatment of Pence During Capitol Riot Was Even Worse Than We Knew, N.Y. Times Mag. (Feb. 11, 2021), https://nymag.com/intelligencer/article/tuberville-trump-knew-pence-evacuated-capitol-tweet.html. [161] Id. [162] Donald Trump, (@realdonaldtrump), Twitter (Jan. 6, 2021 2:38 p.m.), https://www.thetrumparchive.com/?searchbox=%22Please+support+our+Capitol+Police+and+Law+Enforcement.+They+are+truly+on+the+side+of+our+Country.+Stay+peaceful%21%22. [163] Christopher C. Miller Former Acting Secretary of Defense of the United States of America, Before the House Committee on Oversight and Reform (May 12, 2021) (statement of Christopher C. Miller). [164] President tell rioters at Capitol to ‘go home,’ CNN (Jan. 6, 2021), https://www.cnn.com/videos/politics/2021/01/06/donald-trump-go-home-message-rioters-jake-tapper-vpx.cnn. [165] Twitter Safety (@TwitterSafety), Twitter (Jan. 6, 2021 7:02 PM), https://twitter.com/TwitterSafety/status/1346970432017031178. [166] Guy Rosen, (@GuyRo), Twitter (January 6, 2021 5:43 PM), https://twitter.com/guyro/status/1346950532372393985 (“This is an emergency situation and we are taking appropriate emergency measures, including removing President Trump's video. We removed it because on balance we believe it contributes to rather than diminishes the risk of ongoing violence.”). [167] 167 Cong. Rec. H165-192 (daily ed. Jan. 13, 2021) (statement of Rep. McCarthy). [168] Statement by Judd Deere, White House Deputy Press Secretary (Jan.7, 2021) (stating the White House “grieves the loss of life that occurred yesterday and extends sympathies to their families and loved ones. We also continue to pray for a speedy recovery for those who suffered injury.”) (noting the President did not personally express remorse). [169] 395 U.S. 444, 448 (1969) (Douglas, J. concurring). [170] See United States Department of Defense timeline, https://media.defense.gov/2021/Jan/11/2002563151/-1/-1/0/PLANNING-AND-EXECUTION-TIMELINE-FOR-THE-NATIONAL-GUARDS-INVOLVEMENT-IN-THE-JANUARY-6-2021-VIOLENT-ATTACK-AT-THE-US-CAPITOL.PDF. [171] Robin Stein, Haley Willis, Danielle Miller, and Michael S. Schmidt, ‘We’ve Lost the Line!’: Radio Traffic Reveals Police Under Siege at Capitol, N.Y. Times (Mar. 21, 2021), https://www.nytimes.com/video/us/100000007655234/weve-lost-the-line-radio-traffic-reveals-police-under-siege-at-capitol.html. [172] Id. [173] Stein, supra note 171. [174] Kate Brannen and Ryan Goodman, The Official and Unofficial Timeline of Defense Department Action on January 6, Just Security (May 11, 2021), https://www.justsecurity.org/76117/the-official-and-unofficial-timeline-of-defense-department-actions-on-january-6/. [175] Id. [176] Stein, supra note 172. [177] Lisa Mascaro, Ben Fox, and Lolita C. Baldor, ‘Clear the Capitol,’ Pence Pleaded, timeline of riot shows, Associated Press (Apr. 10, 2021), https://apnews.com/article/capitol-siege-army-racial-injustice-riots-only-on-ap-480e95d9d075a0a946e837c3156cdcb9. [178] Stein, supra note 171. [179] NAACP v. Claiborne, 458 U.S. 886, 922 (1982). [180]Donald Trump (@realdonaldTrump), Twitter (Jan. 6, 2021, 2:24 p.m.), https://www.thetrumparchive.com/ (“Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”). See also Representative Joaquin Castro’s presentation to the U.S. Senate during the impeachment trial day two part two (Feb. 10, 2021), https://www.c-span.org/video/?c4945143/representative-castro-rioters-responded-president-trumps-tweet-vice-president-pence. [181] United States Department of Defense timeline, https://media.defense.gov/2021/Jan/11/2002563151/-1/-1/0/PLANNING-AND-EXECUTION-TIMELINE-FOR-THE-NATIONAL-GUARDS-INVOLVEMENT-IN-THE-JANUARY-6-2021-VIOLENT-ATTACK-AT-THE-US-CAPITOL.PDF. [182] Clay Calvert, First Amendment Envelope Pushers: Revisiting the Incitement-to-Violence Test with Mssrs. Brandenburg, Trump & Spencer, 51 Conn. L. Rev. 117, 130 (2019). [183] Richard Ashby Wilson and Jordan Kiper, Incitement in an Era of Populism: Updating Brandenburg After Charlottesville, 5 U. Pa. J. L. & Pub. Aff. 189, 216 (2020). [184] Dan Mangan, Donald Trump Jr. video shows happy family, friends backstage at rally prior to Capitol riot that killed 5, CNBC (Jan. 8, 2021), https://www.cnbc.com/2021/01/08/capitol-riots-video-shows-trump-family-before-rally.html. [185] Brian Naylor, Read Trump's Jan. 6 Speech, A Key Part Of Impeachment Trial, NPR (Feb. 10, 2021), https://www.npr.org/2021/02/10/966396848/read-trumps-jan-6-speech-a-key-part-of-impeachment-trial. [186] Representative Madeleine Dean, Trial of Donald J. Trump, President of the United States (Feb. 13, 2021),https://www.congress.gov/117/crec/2021/02/13/modified/CREC-2021-02-13-pt1-PgS717-2.htm. [187] Calvert, supra note 182, at 142-143. [188] Samira Saramo, The Meta-violence of Trumpism, 12 Eur J. of Am. Stud. 1 (2017). [189] Brigitte L. Nacos, Robert Y. Shapiro, and Yaeli Bloch-Elkon, Donald Trump: Aggressive Rhetoric and Political Violence, 14 Persps. on Terrorism 5 (2020). [190] Fabiola Cineas, Donald Trump is the accelerant: A comprehensive timeline of Trump encouraging hate groups and political violence, Vox (Jan. 9, 2021), https://www.vox.com/21506029/trump-violence-tweets-racist-hate-speech. See also Mike Levine, No Blame? ABC news finds 54 cases invoking ‘Trump’ in connection with violence, threats, alleged assaults ABC News (May 30, 2020), https://abcnews.go.com/Politics/blame-abc-news-finds-17-cases-invoking-trump/story?id=58912889. [191] Herrera Beutler Again Confirms Conversation with McCarthy Regarding January 6 U.S. Capitol Attack (Feb. 12, 2021), https://jhb.house.gov/news/documentsingle.aspx?DocumentID=402083. [192] FOX News Sunday with Chris Wallace, April 25, 2021. [193] David Yaffe-Bellany & Bob Van Voris, Trump May Be Shielded From Riot Charges by Klan Speech Case, Bloomberg (Jan. 12, 2021), https://www.bloomberg.com/news/articles/2021-01-12/trump-may-be-shielded-from-riot-charges-by-klan-speech-ruling. [194] 167 Cong. Rec. S621 (daily ed. Feb. 10, 2021) (statement of Rep. Joaquin Castro). [195] 167 Cong. Rec. S645 (daily ed. Feb. 11, 2021) (statement of Rep. Diana DeGette). [196] Rosalind Helderman et al., ‘Trump said to do so’: Accounts of Rioters Who Say the President Spurred Them to Rush the Capitol Could Be Pivotal Testimony, WASH. Post (Jan. 16, 2021), https://www.washingtonpost.com/politics/trump-rioters-testimony/2021/01/16/01b3d5c6-575b-11eb-a931-5b162d0d033d_story.html. [197] A Reporter’s Footage From Inside the Capitol Siege, NEW YORKER (Jan. 17, 2021), https://www.newyorker.com/news/video-dept/a-reporters-footage-from-inside-the-capitol-siege. [198] See Gov’t’s Opp’n to Def.’s Renewed Req. for Pretrial Release at 5, U.S. v. Meggs, No. 1:21-cr-28 (APM) (D.D.C. Mar. 23, 2021). [199] See Capitol Breach Chart, (last visited Dec. 2, 2021) https://www.justice.gov/usao-dc/capitol-breach-cases. [200] Erin Snodgrass, At Least 10 People Charged in the Seige are Blaming Trump for Their Involvement in the Attack, BUS. INSIDER (Feb. 9, 2021), https://www.businessinsider.com/10-charged-in-capitol-siege-blame-trump-for-their-involvement. [201] Def.’s Opp’n to Gov’t’s Mem. in Support of Pretrial Detention at 4, U.S. v. Jackson, Case 1:21-MJ-115 (RMM), (D.D.C. Feb. 1, 2021). [202] Detention Mem. at 9, U.S. v. Chrestman, No. 2:21-mj-08023-TJJ, (D. Kan. Feb. 16, 2021). [203] Id. at 10. [204] Raley v. Ohio, 360 U.S. 423, 423, 439 (1959). [205] Detention Mem., supra note 203 at 9–11. [206] U.S. v. Chansley, 525 F. Supp. 3d 151, 155 , (D.D.C. 2021) (referring to the Assistant U.S. Attorney’s office in Arizona who sought a court order to detain defendant Jacob Chansley). [207] Alexander Mallin, Horn Helmet-Wearing, Painted Face Capitol Rioter Should Remain in Custody: DOJ, ABC NEWS, (Jan. 15, 2021, 3:48 PM), https://abcnews.go.com/US/qanon-shaman-remain-custody-doj-calls-insurrectionist-harshest/story?id=75275972. [208] Indictment at 2, U.S. v. Chansley, Case 1:21-cr-00003-RCL, (D.D.C. Filed Jan. 8, 2021). [209] Richard Ashby Wilson and Jordan Kiper, Incitement in an Era of Populism: Updating Brandenburg After Charlottesville, 5 U. Pa. J. L. & PUB. AFF. 56, 82 (2020). [210] Brandenburg v. Ohio, 395 U.S. 444, 454 (1969). [211] See U.S. v. Caldwell, No. 21-cr-28 (D. D.C. Filed March 12, 2021). [212] Id. [213] Michael Warren, Liz Cheney on charging Trump:‘That’s a decision that the Justice Department is goin got have to make,’ CNN, (Apr. 26, 2021), https://www.cnn.com/2021/04/26/politics/liz-cheney-republican-retreat/index.html. [214] 167 Cong. Rec. S 735-36 (daily ed. Feb. 13, 2021) (statement of Sen. McConnell). [215] Final Vote Results for Roll Call 154, https://clerk.house.gov/evs/2021/roll154.xml (indicating the House of Representatives voted, 252 – 175, to approve the “National Commission to Investigate the January 6 Attack on the United States Capitol Complex Act”); Chairman Thompson Announces Bipartisan Agreement with Ranking Member Katko to Create Commission to Investigate the January 6 Attack on the Capitol (May 14, 2021), https://homeland.house.gov/news/press-releases/chairman-thompson-announces-bipartisan-agreement-with-ranking-member-katko-to-create-commission-to-investigate-the-january-6-attack-on-the-capitol) (announcing a bipartisan agreement by the House Committee on Homeland Security immediately before Roll Call Vote 154). [216] Brian Naylor, Senate Republicans Block a Plan for for an Independent Commission on Jan. 6 Capitol Riot, NPR (May 28, 2021), https://www.npr.org/2021/05/28/1000524897/senate-republicans-block-plan-for-independent-commission-on-jan-6-capitol-riot. [217] Chairman Thompson Announces Representative Cheney as Select Committee Vice Chair, (September 2, 2021),https://january6th.house.gov/news/press-releases/chairman-thompson-announces-representative-cheney-select-committee-vice-chair). [218] Thompson and Cheney Statement on McCarthy’s January 6th Misinformation Campaign (Sep. 4, 2021), https://january6th.house.gov/news/press-releases/thompson-cheney-statement-mccarthy-s-january-6th-misinformation-campaign. [219] See, e.g., United States v. Whitton, No. 21-35-5 (EGS), 2021 U.S. Dist. LEXIS 75416 (D.D.C. Apr. 20, 2021) (finding that Whitton poses a danger to the community since he could still be influenced by former president Donald Trump who continues to allege rampant fraud took place during the 2020 election and thus should not be released). See also Kyle Cheney and Josh Gerstein, How Trump’s renewed election rhetoric is complicating Capitol rioters legal fight, Politico (Apr. 27, 2021), https://www.politico.com/news/2021/04/27/trump-rhetoric-capitol-rioters-legal-fight-484787. [220] 167 Cong. Rec. H2191 (daily ed. May 11, 2021) (statement of Rep. Cheney). [221] Einer Elhauge, The First Amendment doesn’t protect Trump’s incitement, Wash. Post. (Jan. 14, 2021), https://www.washingtonpost.com/outlook/2021/01/14/trump-brandenburg-impeachment-first-amendment/. [222] Richard Ashby Wilson and Jordan Kiper, Incitement in an Era of Populism: Updating Brandenburg After Charlottesville, 5 U. Pa. J. L. & Pub. Aff. 56, 114 (2020). [223] Cheney, supra note 219.