As Trump says he is going to be indicted for incitement, let’s look at the last time he beat that ‘rap’

At least that is how I translate what he is saying. As I jokingly say, I am dyslexic, so I am fluent in typonese and I will try to be your interpreter. I mean, he writes that the indictment would be ‘pertaining to my ‘PEACEFULLY AND PATRIOTICALLY Speech.’ At first, I thought he simply had a bunch of typos and he meant to say something more like ‘pertaining to my PEACEFUL AND PATRIOTIC speech.’ But literally as I wrote this piece, I discovered that this is also a direct quote of his January 6, 2021 speech, where he says that his followers will ‘peacefully and patriotically’ march to the Capitol. So now I am pretty sure the main typo was failing to close his quotation marks, so it would say something more like ‘pertaining to my ‘PEACEFULLY AND PATRIOTICALLY’ speech’ as though he is treating ‘Peacefully and Patriotically’ as the name of the speech. All of that suggests that he is anticipating that he will be indicted for some crime, probably incitement, based on that speech.

And if Trump is forced to defend himself criminally in court, he might want to cite a particular precedent: The prior case when he was found not to have committed incitement.

Specifically, I am talking about Nwanguma v. Trump, 903 F. 3d 604 (6th Cir. 2018). And I think, dear VIP reader, it might be interesting to talk about that case, to see what light it shines on any potential indictment.

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So first, what happened in that case? Three people, Kashiya Nwanguma, Molly Shah and Henry Brousseau sued Trump for inciting a riot under Kentucky law and Trump’s lawyers argued that the case should be dismissed.

Now, here’s a really important point when discussing a motion to dismiss: Most of the time in federal court, the judge is not supposed to consider any evidence when deciding a motion to dismiss. The sole question is if we assume the plaintiff is telling the truth, does he or she have a right to recover? What the court is really asking is ‘can the plaintiff tell a story where he or she wins the case?’

Let me give you a practical example. Let’s suppose a complaint (the document used to start a case) claims that the defendant breached a contract. The complaint claims the defendant agreed to buy a product from the plaintiff at a set price, they were supposed to meet in a specific place and time, and the plaintiff and defendant met and the defendant refused to buy the product. So far, that sounds like an open-and-shut case for breach of contract. I mean, the complaint has to go into more detail, but if all of that is true, the plaintiff would win.

But suppose that the complaint also says that the product in question is cocaine and it would be illegal for the defendant to have that cocaine. Well, in that case the court would say (paraphrase), ‘even if the plaintiff is telling the truth, he still loses because we don’t honor illegal contracts like this.’

And the important thing to get is that the defendant might deny the entire story. He might say ‘we didn’t make a deal for anything, and certainly not cocaine!’ But the court won’t even consider that for the purposes of a motion to dismiss. On a motion to dismiss, the court will explicitly pretend that everything the plaintiff says is true, with very few exceptions.

So here are the allegations the Plaintiffs made in Nwanguma—and the court is required to treat all of this as the truth. On March 1, 2016, Trump was holding a rally in Louisville, Kentucky. He wasn’t the nominee for the Republican Party, officially, at that point in time. Anyway, according to the complaint, these three people wanted to protest, peacefully at Trump’s rally and did just that. At that point, Trump said ‘get ‘em out of here’ five times. After he said that, the plaintiffs were assaulted, pushed and shoved by members of the audience and Mr. Brousseau was allegedly punched.

So, the lower court found that if these allegations were true then Trump incited a riot in violation of Kentucky law and, therefore, the plaintiffs could go forward with the case. So, Trump appealed to the Sixth Circuit, which ruled in Trump’s favor. 

In deciding the case, the Sixth Circuit spends a good chunk of the opinion discussing Kentucky’s law against inciting a riot and whether the statute actually applies, but that’s only interesting if you actually live in Kentucky or a state with a similarly-worded statute. Instead, I am going to focus on whether the First Amendment protects what Trump said.

The Sixth Circuit focused very closely on Brandenburg v. Ohio, 395 U.S. 444 (1969) and the constitutional test the Supreme Court articulated for incitement and so it’s worth taking a moment to talk about that the case in depth. Brandenburg is a 1969 case and that year is relevant because it involves the KKK and at that time the KKK was a much more popular and deadly organization. There was a KKK rally in Ohio that was filmed by reporters. They were burning crosses, they were armed, they were saying the kind of racist and antisemitic nonsense you expect them to.

Clarence Brandenburg was a leader of this group and he made a speech. I won’t go over all of it, but he talked a bit about some planned marches, bragged about how huge the organization was and then we get to the key passage, when he said

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.

Yes, he said actually said ‘revengeance’… Oy vey. And obviously, while revengeance is not a real word, that sure as heck sounds like a call for violence at some point in time in the future.

And while I am mocking this guy, let’s not forget that let’s not forget that the KKK was an outright terrorist organization. If you said things they didn’t like, they would try to murder you. To try to stop the civil rights movement, they regularly used assassinations and bombings and other violent actions. Only six years before this, on September 15, 1963 someone who was at least a fellow traveler with them bombed the Sixteenth St. Baptist Church in Birmingham, Alabama, and killed four little black girls while they attended Sunday school. This is the same kind of evil as al Qaeda and you can bet that regardless of how the Supreme Court ultimately ruled, they probably took the danger these people posed seriously. I wouldn’t be shocked if security at the court was increased.

But there was a legal question involved. Brandenburg himself was convicted under Ohio’s Criminal Syndicalism statue for ‘advocat[ing]... the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform’ and for ‘voluntarily assembl[ing] with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.’ That’s quoting from the relevant statute he was convicted of violating, and the Ohio Supreme Court blessed that conviction. 

But the United States Supreme Court did not—which is kind of remarkable, because he was threatening them, too. But the Supreme Court stepped in and unanimously vacated the conviction and, in the process, gave us this the test for incitement of violence under the First Amendment: 

the constitutional guarantees of free speech and free press do not permit [the government] 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.

So, that’s a three-part test. You have to have: 1) advocacy of the use of force or of law violation, 2) directed to inciting or producing imminent lawless action, and 3) it has to be likely to incite or produce such action.

And let’s break this down a little further. You will notice that obviously advocating violence is covered, but what if you advocate peaceful, but criminal conduct? Like imagine there is a crowd in front of a store and you shout to them, ‘we should go in there and, without hurting anyone, we should steal everything that isn’t nailed down!’ Well, that could be incitement of theft and a state could make that a crime.

Further, I think that the advocacy of violence has to be for illegal violence—the Supreme Court just didn’t think to include the word ‘illegal.’ Like imagine I am in Virginia and I see a man charging at my wife with a knife with murderous intent and she is carrying her gun as usual. So, I shout to my wife, ‘shoot him!’ and she shoots him. I don’t believe that would be unlawful incitement because the action I advocated wasn’t ‘lawless’—it was lawful. She had a legal right to shoot the guy under those circumstances.

And notice, that the last two prongs of this test for incitement require the danger to be very immediate, ‘imminent.’ That’s not ‘tomorrow.’ That’s not ‘three hours from now.’ That’s pretty much ‘right now.’

Another thing to understand is that truth has nothing to do with the test for incitement. For instance, John Hinkley, the man who shot Ronald Reagan, is now a free man. So, suppose you run into him and you say to a crowd of people, ‘Hey, that’s John Hinkley! He shot Reagan! Kill him!’—every fact asserted in that hypothetical is true, and that still can be incitement.

Another thing to understand is that you can commit incitement that meets this test without anyone actually listening to you and doing what you said. You could stand up in front of an angry crowd and say ‘let’s burn this whole town down!’ Even if they decided to ignore you, you could still end up being convicted for incitement, because it’s not about whether your words actually cause violence or lawlessness, but whether it is intended to cause it and is it likely to cause it.

And don’t forget, I am just talking about the Constitution. Therefore, what the Supreme Court is saying is that if the federal government or a state government wants to make incitement illegal, this is how far they can go. But they don’t have to have such laws at all.

Finally, you have to violate all three prongs of the test to commit incitement. So, for instance, you can clearly advocate illegal violence, but not imminently, and that speech would still be protected.

And you, dear reader, might ask why would the law should tolerate any person advocating violence at all? I think the answer goes right back to our founding. We are a republic born in revolution. I don’t know about you, but as an elementary school student, I was required to read the Declaration of Independence. That document, particularly the second paragraph, pretty explicitly argues that sometimes government becomes so oppressive that we are justified in overthrowing it, by violence if necessary. So, if the law says advocacy of violence is inherently illegal, then you will end up banning the Declaration of Independence itself.

And obviously, you can’t do that.

So how did the Nwanguma court apply these principles to Donald Trump's expression? Well, the 6^th Circuit noticed that the lower court basically skimped on the first prong of the Brandenburg test—the requirement of advocacy of violence or other illegal conduct—and the court found that there was no advocacy of violence, in that case.

And I think one thing the Sixth Circuit was thinking, but not quite saying, is this. This rally was a private gathering. Trump had a right to exclude anyone he wanted. So, Trump could have said, when these protesters started protesting: ‘this is a gathering of my supporters. You three, protesting me, are obviously not my supporters. So, I want security to remove you.’ And yes, security could have enforced the private nature of this gathering by removing those people with no more force than necessary to remove them. The courts have long held that you have a right to associate, and a right not to associate, as part of the First Amendment. Thus, I believe what is implicit in the Sixth Circuit’s analysis is that Trump can be read as asking these people to be lawfully removed.

Mind you, I am not saying the court was intentionally leaving out anything. I would guess instead that it thought it was so obvious that it didn’t need to be said.

Now, the district court—the lower court—relied a lot on its belief that Trump knew that regardless of his actual words, that his followers would get violent when he said what he said. However, the Sixth Circuit stressed that without the first factor, without advocacy of lawlessness or violence, you just can’t meet the Brandenburg test, saying:

the speaker’s intent to encourage violence (second factor) and the tendency of his statement to result in violence (third factor) are not enough to forfeit First Amendment protection unless the words used specifically advocated the use of violence, whether explicitly or implicitly (first factor). Here, too, the district court… placed too much weight on the second and third Brandenburg factors while slighting the key role of the first.

In other words, you can’t just say ‘well, he knew violence would happen if he said it.’ You have to show that somehow he was advocating for it.

Which kind of drives a stake through the heart of the leftist stochastic terrorism talking point, doesn’t it?

And the Sixth Circuit pointed out another fact, alleged in the complaint, that helps Trump, writing:

Of course, what is here alleged to constitute incitement to riot is just a few words, ‘get `em out of here,’ repeated several times…. In the ears of some supporters, Trump’s words may have had a tendency to elicit a physical response, in the event a disruptive protester refused to leave, but they did not specifically advocate such a response. As to how the offensive words were said, we know, most relevantly, by plaintiffs’ own allegations, that the words were accompanied by the admonition, ‘don’t hurt `em.’

That this undercuts the alleged violence-inciting sense of Trump’s words can hardly be denied.

So, the Sixth Circuit believed that Trump specifically telling his followers not to hurt these protesters negated any claim that he was advocating any violence in the first place. But in our opinion, if Trump hadn’t said that, the Sixth Circuit would’ve sided with him, anyway—it just made his case stronger.

Therefore, considering all of this, the court said that this was not incitement of violence, and so they ordered the lower court to dismiss the case, as far as Trump and his campaign were concerned. There were still claims against some of the people who allegedly put hands on the plaintiffs, but Trump and his campaign were out.

And in the process of talking about that case, I was also giving you a crash course on the law of incitement. I’m very sneaky like that.

Now we can ask the question: Did Trump commit incitement of a riot on January 6, 2021? First, I will point out that D.C. Code § 22-1322 (c) does indeed make it a crime to incite a riot in the District of Columbia. And so Trump might be indicted and, if he is, he might cite Nwanguma when fighting the case.

Mind you, what the Sixth Circuit ruled probably isn’t directly controlling precedent. After all, this case isn’t likely to be in the Sixth Circuit. It will probably be in the D.C. Circuit. Still, any court trying to claim he committed incitement will have to explain either 1) why the facts in this case lead to a different outcome or 2) why the Sixth Circuit just got it wrong and should be disregarded.

But we have to put the facts together. Here’s the speech Trump made so you can listen:

Trump doesn’t speak for about 38 minutes, so move forward in the video if you have to. And if you haven’t listened to it, I really think you should. I never listened to it until a few months ago and I was shocked at the difference between the speech and what I heard about it. I kept hearing people claim that Trump riled up the audience with his words and that’s not true. This is not a classic barn burner of a speech. It is honestly boring. It is hard to imagine anyone listening to it and getting so angry that they are ready to start rioting.

And you definitely don’t hear any advocacy of violence. I found a transcript on NPR’s website and the article attached to the transcript cites this passage as alleged incitement: ‘We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore[.]’

But in ordinary language, ‘fight’ doesn’t necessarily mean actual violence. For instance, I found a passage on Joe Biden’s campaign website that says

As President, Biden will reverse the damage done by Trump’s presidency, fight efforts to weaken the civil rights of all Americans, and work diligently with Congress and the disability community to expand access to needed services.

No sane person would think Joe Biden will actually box with people who are supposedly weakening the civil rights of Americans. And I would have written that even before we all saw his floppy man boobs earlier today (that’s my three words). Everyone reading this knows that Biden is talking about a political fight, a fight of words and maybe lawsuits, but not an actual, physical fight.

And in the context of Trump’s January 6 speech, he uses the word ‘fight’ over and over again in a clearly metaphorical sense. For instance, in one passage he talks about fighting with the press:

The American people do not believe the corrupt, fake news anymore. They have ruined their reputation. But you know, it used to be that they’d argue with me. I’d fight. So I’d fight, they’d fight, I’d fight, they’d fight. Pop pop. You’d believe me, you’d believe them. Somebody comes out. You know, they had their point of view, I had my point of view, but you’d have an argument.

I highlighted each use of the word ‘fight’ in bold. Again, no sane person would think that he was literally talking about physically attacking press—despite CNN’s previous bedwetting on the subject.

How CNN found the Reddit user behind the Trump wrestling GIF https://t.co/GnP6qQm3Q6 pic.twitter.com/yk6nUkwDYK

— CNN Politics (@CNNPolitics) July 5, 2017

And like in Nwanguma, Trump says very specifically he is seeking peaceful protest in his January 6 speech:

I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.

For those paying attention, that is the part Trump seemed to be quoting in his TruthSocial post that kicked this piece off.

In fact, if you want to know how Trump imagined things would go at the Capitol, he explains it all in this passage of the speech:

So we’re going to, we’re going to walk down Pennsylvania Avenue. I love Pennsylvania Avenue. And we’re going to the Capitol, and we’re going to try and give.

The Democrats are hopeless — they never vote for anything. Not even one vote. But we’re going to try and give our Republicans, the weak ones because the strong ones don’t need any of our help. We’re going to try and give them the kind of pride and boldness that they need to take back our country.

If you cut through all the asides and half-finished thoughts, he was hoping that his proposals to challenge the electoral college votes would be seriously considered. (SPOILER: it wasn’t.) And he hoped to give wavering Republicans ‘the kind of pride and boldness that they need to take back our country’ and basically vote to support his challenge to the election. That’s a plan of peaceful protest. He was not calling for the riot that happened.

So, if you apply the same principles from Brandenburg to January 6, Trump did not commit incitement, as a matter of first amendment law. And I know some people might say ‘but he stirred people up and caused the violence!’ 

First off, if you’re saying that, did you actually listen to the speech? Again, it is not exactly a rousing speech. And if you listen, the audience doesn’t sound very pumped, either.

But let’s play pretend. Let’s pretend he riled them up to a violent fervor, ready to riot at a moment’s notice. Even if he did all that, that is not enough—you have to have advocacy of violence or lawlessness.

For instance, in Near v. Minnesota, 283 U.S. 697 (1931) the Supreme Court wrote that

There is nothing new in the fact that charges of reprehensible conduct may create resentment and the disposition to resort to violent means of redress, but this well-understood tendency did not alter the determination to protect the press against censorship and restraint upon publication.

In other words, the Supreme Court is saying, yes, if you accuse people of doing bad things—like Trump was—some people might get angry and violent. But that’s not a reason to suppress their free speech. After all, some day you might want to say something bad about Trump—or you simply value the right to say something bad about him.

And by the way, it doesn’t matter in this context if what Trump was saying was true or not. In Near v. Minnesota, the speech was found to be false and defamatory. It didn’t matter to the Supreme Court.

And I’ve said this before, but if you think the government can suppress speech just because it makes people angry, that is the end of the free speech. A major reason for the First Amendment’s existence is so we can criticize people or otherwise accuse them of reprehensible conduct. Yes, that sometimes inspires violence and death threats and by all means punish the people who commit violence and/or make threats. But the Supreme Court recognized that you had to meet a high bar before speech could be banned as incitement.

And to understand why the Supreme Court actually thinks anger is valuable, I would quote from Terminiello v. Chicago, 337 U.S. 1 (1949):

a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, … is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.

That’s why I believe any such indictment (or civil suit on the subject) will ultimately fail. The only question is how long Trump will have to fight the cases before they do fail—and yes, bleeding Trump, financially, might be one of the goals in this litigation. And while I am not thrilled to learn today that Trump’s campaign is spending over $40 million to defend against these suits...

Former president Donald Trump’s political group spent more than $40 million on legal costs in the first half of 2023 to defend Trump, his advisers and others, according to people familiar with the matter, financing legal work that has drawn scrutiny from prosecutors about… pic.twitter.com/PfJgIBWrIL

— The Washington Post (@washingtonpost) July 30, 2023

…I don’t condemn Trump or the PAC for doing it—though I question the price tag. But if Democrats are going to use lawsuits and criminal charges as a political tactic—and they obviously are—then it makes perfect sense for Trump to be able to use political money to fight it.

And, of course, Trump is benefitting, politically, from these fights—at least in the primary. And you have to consider the very real possibility that they are doing this precisely so Trump gets the nomination, because they believe they can beat him in the general election. I am open to the possibility that Manhattan D.A. Alvin Bragg didn’t understand this when he first filed charges. Maybe he thought he would really sink Trump, or he was just pleasing his constituents. At this point, however, the various prosecutors can’t possibly be confused about this. They can’t not know they are helping Trump, at least in the short term. So, you have to ask yourself if you think that is the goal—are they trying to manipulate Republican voters into supporting Trump?

Ultimately you will make up your own mind on this, but I think it is something to think about. And yes, no matter how you come down, all of this stinks of election interference.