Incitement and the President: Defining the Law

March 4, 2021

On February 13, 2021, 57 Senators, including seven Republicans, voted to convict ex-President Donald Trump. That number was ten shy of the number needed for a conviction on the one charge in the impeachment article: incitement to insurrection. However, the impeachment trial left us with several questions: What led the House of Representatives to interpret the President’s words as incitement? Can the President still be prosecuted for incitement to insurrection?

The “Rigged” Election

By the time all the votes were counted in the 2020 presidential election, it was clear that this had been an election like no other. Former Vice President Joe Biden received more votes than any candidate in history. However, the losing candidate, President Donald Trump, received the second most votes of any candidate in history. The fact that Trump ran about 7 million votes ahead of his 2016 vote count and still lost led Trump followers to believe that the election had been rigged. This conspiracy theory was promoted by Trump, with help from some social media outlets and even some cable commentary programs.

As Congress was convening to certify the results of the electoral college vote on January 6, 2021, Trump attended a rally in front of the White House. Addressing demonstrators, Rudy Giuliani and Donald Trump, Jr. preceded the President, firing up the mob and thus establishing a context for the President’s remarks. Trump then urged his followers to march on the Capitol “peaceably.” Demonstrators already at the Capitol were soon joined by the mob from the rally. They viciously attacked the small band of Capitol police who were protecting the building. They broke through the police lines, smashing windows and doors, and breaking into the Capitol itself. It was the worst attack on the Capitol since the British invasion of 1814. Five people died, including a Capitol police officer, and many were injured in the melee that followed. Trump’s followers trashed the building, some urinating in its hallways. The floors of the House and Senate and many Congressional offices were attacked in the midst of the insurrection. One demonstrator made his way into Speaker Pelosi’s office and sat in her chair. He left a note behind: “We will not back down.” Another took her podium and paraded with it through the Capitol Rotunda. Many demonstrators claimed to be following orders of the President. Other demonstrators were heard to yell “Where’s Nancy?” and “Hang Mike Pence!” The nation was shocked.

The Second Impeachment

Eventually, order was restored, and Congress certified the election over the objections of 140 House Republicans and several Senate Republicans. President Trump was then impeached, this time for inciting an insurrection. Incitement to violence is a crime in many states and with the federal government. The Federal Statute reads: “Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.” But what is the actual definition of incitement? What is the burden of proof that a prosecutor must meet to prove incitement?

Supreme Court Justice Oliver Wendell Holmes argued that for speech to be proscribed, that is, to lose First Amendment protection, it must be a “true threat,” which he defined as presenting “a clear and present danger.” However, in his dissent in Abrams, Holmes condemned the government’s “attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.” That same year, Holmes developed his test with a powerful metaphor in the Schenck ruling when he argued that “falsely shouting fire in a theater and causing a panic” was not protected by the First Amendment. Such speech presented a true threat. Thus, Holmes used context to establish when protected ideological speech becomes prosecutable action.

The next step in the development of the true threat theory came in a case that reinforced the use of context to determine whether words could be seen as actions. During World War II, a pamphleteer named Chaplinsky was stopped from distributing pamphlets by a local sheriff. Chaplinsky called the sheriff a “god damned Nazi”; the sheriff then struck Chaplinsky. The Supreme Court ruled that in the context of the war with Nazis, Chaplinsky’s words were tantamount to throwing the first punch and, thus, a true threat to the sheriff, an action not protected by the First Amendment. In context, Chaplinsky had uttered “fighting words.”

In its 1949 ruling in Terminiello v. Chicago, the Supreme Court held that even antisemitic diatribes were protected speech because they represented an ideological point of view. The speaker, who had been convicted of violating a Chicago disorderly conduct law, had condemned, among others, “atheistic, communistic Jewish or Zionist Jews.” The instructions of the sitting judge are relevant to the case of Trump. The judge instructed the jury that the prosecutor need only prove that the speech “stirs the public to anger, invites disputes, brings about conditions of unrest, or creates a disturbance.” Writing for the majority and overriding the judge when the case reached the Supreme Court, Justice William O. Douglas argued that controversial, viewpoint speech often contributes to reform and is therefore protected: “It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions. . .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.” Douglas’ opinion may bode well for Trump if he is indicted in the future. But other decisions do not.

In 1969, the Supreme Court issued a definitive ruling in the case of Brandenburg v. Ohio. Clarence Brandenburg advocated violence against Blacks and Jews at an Ohio gathering of the Ku Klux Klan, of which he was an official. Standing by a burning cross, he said, “[I]f our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revenge taken. . .Personally, I believe the n*****r should be returned to Africa, the Jew returned to Israel.” In this often-cited precedent, the Supreme Court ruled that to pose a “true threat” the communication must cause endangerment against a specific person(s), be “directed to inciting or producing imminent lawless action and is likely to produce such action.” Again, the Supreme Court feared suppressing an ideological point of view that was not imminent enough or specific enough to be deemed criminal action.

And that brings us back to the case of Trump. First, in his context, the President was more specific in singling out targets than was Brandenburg. He mentioned Republicans in Congress and the Vice President. Trump warned his Vice President to do the right thing. The context was reinforced when Donald Trump, Jr. said they were “coming for” those members of Congress who would vote to uphold the electoral college. Second, the action urged was clearly feasible and imminent. The Capitol was just blocks away, and the mob was clearly capable of storming it. When he spoke, President Trump encouraged the demonstrators to march on the Capitol: “We are going to walk down Pennsylvania Avenue. . .We will never give up. We will never concede. It will never happen. You don’t concede when there’s theft involved. Our country has had enough. We will not take it anymore.” Third, the action that resulted was illegal. The mob was clearly capable of disorderly conduct and posing a threat. But is that what Trump advocated in his remarks? They can be read in the context of Giuliani’s call for “trial by combat.” Furthermore, Trump urged his followers to “fight like hell.”

The U.S. Senate during the second trial to remove Trump from office was free to ignore the Brandenburg standard; that is, to opine that Trump’s words did not constitute a “true threat” or were merely ideological ramblings. And, in fact, they did not vote to convict because of the two-thirds requirement. However, a jury of his peers might disagree. With the deaths at and the damage done to the Capitol resulting directly from Trump’s words when interpreted in their context, a jury might find him guilty of insurrection.

The opportunity for such action may develop over the next few months. Attorney General Racine of the District of Columbia is looking into charging Trump under the DC statute which carries a sentence of six month in jail. A Mississippi Congressman in league with NAACP is asking that Trump be charged with violating the 1871 Ku Klux Klan Act, which makes it a crime to conspire to commit an illegal act. But can a former President be charged for crimes he committed while President? Most legal scholars agree that he can. In fact, President Ford pardoned former President Nixon in 1974 explicitly so that Nixon could not be prosecuted for obstruction of justice among other infractions. In my opinion, the determining factor in any cases that are brought forward will be whether the jury will be allowed to consider whether context creates meaning, thus converting protected speech into a true threat to the nation.

18 U.S. Code Section 2102
18 U. S. Code Section 2383
Abrams v. United States, 250 U.S. 616 (1919).
Brandenburg v. Ohio, 395 U.S. 446 (1969)
Chaplinski v. New Hampshire, 315 U.S. 568 (1942).
Schenck v. United States, 249 U.S. 41, 52 (1919).
Terminiello v. Chicago, 337 U.S. 1.



CRAIG SMITH is the Emeritus Director of the Center for First Amendment Studies at California State University, Long Beach. Smith is a scholar of freedom of expression, rhetorical theory, and public address criticism and is the author of 18 books and dozens of scholarly articles. Smith is also an award-winning researcher and teacher, having won CSULB’s Outstanding Professor award in 2000 and its Distinguished Scholarship award in 1994. Smith has also served as a consultant to CBS News and was a full-time speechwriter for President Gerald Ford and Chrysler CEO Lee Iacocca, as well as a consultant to other political figures.