WTH is Incitement?
As the investigation into the January 6 Capitol riot continues, the man who allegedly incited the whole thing seems to have been largely forgotten. After a second impeachment (but no conviction), Trump has retreated to his Florida home via helicopter and there is no sign that he will ever face any serious consequences for his role in the attempted insurrection. I mean, if you don’t count being banned on Twitter, which I actually do count.
At least Twitter thinks that Trump incited the Capitol riot because Twitter banned Trump — permanently — on January 8, 2021 “due to the risk of further incitement of violence.” 57 Senators and 232 Representatives agreed with Twitter when they voted mostly (but not completely) on party lines during the second impeachment process.
But the man is still not in jail. He has been sued civilly by Representative Bennie Thompson for incitement under the Ku Klux Klan Act and Representative Eric Swalwell for incitement to riot, as well as a slew of other things such as negligence and intentional infliction of emotional distress. Reporters are also predicting that many more lawsuits are certain to follow.
So did Trump commit incitement? A vocal minority of Congress and the right-wing press say no. But what is incitement?
Well, under the law, it’s two things. Incitement is both a crime and a defense to a First Amendment claim. It’s complicated. Everything connected to the First Amendment is complicated. But, fortunately, there’s only one definition we have to work with and, irony of ironies, it comes from the Ku Klux Klan.
Don’t get me wrong. Incitement is an old concept. Like, at least World War I old. But the definition everyone works from today was created by the Supreme Court in the famous case of Brandenburg v. Ohio in 1969. That case involved a statement made at a Ku Klux Klan rally by a Klan leader who threatened “revengeance” if the United States government didn’t stop trying to promote civil rights. Okay, so terrible facts, but the case gives us something of a definition. Incitement is:
advocacy of the use of force or of law violation . . . where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
So, it breaks down like this:
- there was a call to action for the use of force or a violation of the law
- the force or law violation was imminent
- there was an intent to incite
Simple, right? Oh, absolutely not. I could write a book on what this means. Several people have, and that was before Trump even started campaigning.
Let’s focus here. Is what Trump said incitement? Well, what statements are we looking at? Do we just look at his words, or do we look at what was happening around those statements — that is, how his audience may have understood them in context? That is not clear based on the existing cases but I have a few thoughts.
- Call to Action
This is the heart of incitement — what did the speaker say that made people act violently or illegally? There are two types: direct incitement and indirect incitement. Direct incitement is the standard kind where the speaker’s actual words persuade the audience to engage in violence or illegal acts when they otherwise wouldn’t have. And these words can’t just encourage or advocate violence, they must basically command or instruct the audience to act.
There’s also indirect incitement, which hasn’t been dealt with a lot in the courts. Indirect incitement doesn’t necessarily look like incitement on its face but the words have a specific meaning to the audience that causes them to react. Indirect incitement can also include coded language that the audience understands and, because of this, indirect incitement requires an examination of the context of the speech.
2. Imminence
Like the call to action, imminence has two different versions. The more traditional version of imminence requires that the reaction from the audience happen quickly, though the Supreme Court has never stated exactly how quickly in order to qualify.
Alternatively, this requirement has also come to mean more than a quick reaction; it can also mean a certain reaction. The certainty of a violent or illegal reaction to speech can result when the speaker instructs the audience to be violent on a specific date or when it is unlikely that the audience will stop to reflect before they act.
3. Intent
This part of incitement requires that the speaker intends that the audience react with violence or acting illegally. It can’t be an unintended consequence. How do we know what the speaker’s intent is? We can look at the crowd to see how riled up they are and how influential the speaker is over them. We can also look at the speaker’s prior statements to see what they intended.
So, there you have it. A definition. When applying it, with all its complexities, to Trump’s speech on January 6, it’s a pretty promising case, particularly with all the evidence that’s coming to light. Imminence is the easiest part — the crowd went directly from Trump’s speech to storming the Capitol. Intent might be pretty easy, too. There is evidence that Trump was pleased with what happened that day and his reluctance to call off the mob is more evidence that he intended the riot.
As with the 2016 lawsuit that sued him for incitement, the problem here is going to be his words. Did he call his supporters to action? Did he tell them to violently storm the Capitol, defile it, and steal from members of Congress?
Nope. Not exactly.
What did he actually say? He said they would walk down Pennsylvania Avenue. He said they needed to “fight like Hell!” He threw Pence under the bus. And he did all of that after spending months convincing his followers that the election was stolen from him. From them. He had multiple hashtags he used — #riggedelection and #stopthesteal that he and various alt-right groups, including QAnon, used to rile people up for months before the fateful day of the Capitol riot. January 6 was not the first armed protest against the election by Trump supporters and at no time did Trump suggest that the violence would not be tolerated. Instead, after the Michigan protest where it was revealed that some of the protesters intended to kidnap the Governor, Trump praised and sympathized with them.
Instead, he told them to come to his January 6 rally, promising it would be “wild.” So, when they did and he said they would go together to give Republicans “courage,” it’s entirely believable that he was telling them to storm the Capitol to interrupt the vote count and they did what he told them to. The rioters themselves have said they were doing what he told them to.
Is that enough? We’ll have to wait to see what the courts think.
