Talk urging violence doesn't get free speech protection

By: Rob Miraldi
Your Turn
Guest columnist

..... The shards of insurrection are sharp in the American soil. In fact, they date back to our revolt form the British. But today [01/27/2024] they are routed in someone's provoking words, someone's incitement - implicit or explicit - meant to stir the pot to boiling, foment violence and intimidate public officials.
..... "A little rebellion now and then is a good thing," Thomas Jefferson infamously wrote in 1787. but I'm wondering what he would say today. angrily talking back is one thing; kicking someone in the ribs is another.
..... The federal judge overseeing former President Donald Trump;s election subversion case in Washington, D.C., needed police at her home because her family was threatened. The judge over-seeing Trump's New York civil damages lawsuit - which may cost him 4350million - received a similar threat on the day of closing arguments.
..... Colorado's Supreme Court judges, who agreed that Trump should be kept off the state primary ballot, all have received threats, and the FBI is investigating. Ditto members of the Wisconsin supreme Court, which ruled to uphold Joe Biden's presidential victory.
..... Declared Attorney General Merrick Garland, "this is just a small snapshot of a larger turned that has included threats of violence against those who administer elections, report the news, represent their constituents and keep our communities safe."

Is speech inciting violence constitutionally protected?

..... As the January snows cover much of America, a sharp and ominous politician chill blankets the nation. They presidential election beckons nine months form now, but the big question still looms: Should the speech of the person who incites the violence of others be protected by the First Amendment to the U.S. constitution?
..... In theory, the answer is no. Threatening national security is not protected; publishing sexually explicit and obscene material is not protected; and lighting the flames of violence with inciteful language is also prohibited.
..... But the incitement exception has always been tricky, more now then eve."Every idea is an incitement," U.S. Supreme Court judge Oliver Wendell Holmes said in 1925. Maybe only the person who commits violence should be prosecuted, not the person who causes it?
..... I"m talking of course, about the former president whose words - and encouragement - are largely believed to have caused the January 6 [2021] "insurrection" in Washington, D.C. Five people died, 174 police officers were injured and four offices who responded died by suicide within seven months. And violence aside, the American myth of peaceful transition of governmental power was brutally shattered.
..... But don't take my word for it. Listen to the Colorado Supreme Court, that state's top court, after it herd arguments on whether Trump should be taken off its primary ballot. The judges opened with this conclusion: "The court found by clear and convincing evidence that President Trump engaged in insurrection ... though his personal actions." and his speech that day "was not protected by the First Amendment."
..... Nonetheless, Trump & Company are trying to rewire the history of January 6. [2021] He insists the forceful invasion of the Capital halls was justified and, if reelected, he will pardon the convicted "hostages." By the way, 1,200 people have been charged in the day's violent invasion, more than 460 have been imprisoned and 718 have pleaded guilty.
..... Trump, too, has been charged - not for inciting the violence but for conspiracy to defraud the United States, witness tampering, conspiracy against the rights of citizens, and obstruction of an official proceeding. Translated: As president, a special prosecutor found, he tired to stop the handover of power from one president to the next.
..... None of these is a speech-related charge; they are actions. But incitement was not charged only because it raises tricky free speech questions that might bog down prosecution on the other charges. And this is a real shame. Because the former president's words - and actions - were meant to create a violent rebellion. And he continues to incite and endanger us today.

How can our courts address speech crimes now?

..... In this new era of wanna-be fascist, populist demagogues, the courts need a hammer on how far speech can go. And they way to d that is to prosecute speech crimes, carefully, judiciously but vigorously.
..... The first Amendment was put into place to protect citizens - to ensure, first, that the political party in power, Democrat or Republican, could not silence its opposition, including the leader of a hostile and adversarial press. But the exceptions to this protection were also meant to protect us from abuse of speech.
..... The incitement exception was meant to stop one person from provoking another into direct confrontation or violence. But it was also the government's go-to weapon to foil socialists protesting World War I. And the courts struggled to define its meaning and application.
.... Some clarity came in 1974 when the Supreme Court ruled that states could restrict only speech aimed at producing "imminent lawless action" and that was likely to incite such action. That "requires the government to prove a speaker actually intensed to incite others to engage in unlawful conduct," Clay Calvert, a prominent legal scholar and textbook author, told me in an email.
..... As any psychiatrist would tell us, getting into the head and intentions of Trump might defy the best of researchers. But the evidence of his behavior and speech on January 6 [2021] offers plenty to merit prosecution. I carefully read the December [2023] decision of the Colorado Supreme Court and was shocked at how definitive it was.
...... The judges concluded, "president Trump's messages were a call to his responded to the call," Trump literally exhorted his supporters to fight at the Capitol" and he "undertook all these actions to aid and further a common unlawful purpose that he himself conceived and set in motion" to "further the insurrectionists' common unlawful purpose of preventing the peaceful transfer of power."
..... In an article titled "Making the Case for Trump's January 6th [2021] Speech as Incitement," Beck Reifeerson wrote that Trump "lit a rhetorical match before the most flammable of audiences. And when he urged those in attendance to 'fight like hell,' he further convinced an already aggrieved crowd of the necessity of taking up extreme measures."violence was the result.
..... The American courts hardly need another trump case. But we do need to stop his violence mongering. Two scholars who have studied the question observe: "Holding Trump personally responsible for the Capitol siege could establish a precedent, applicable to future relevant cases of speech and incitement."
..... On January 9 this year, [2024] leaving a courtroom, Trump declared that if he is convicted, "it'll be bedlam in the country. It's the opening of a Pandora's box." Responds Attorney General Garland, "these threats of violence are unacceptable. they threaten our fabric of democracy."
..... Trump can rant all he wants about political issues, but inciting his troops to violence is a crime. And criminals belong in jail.

..... Rob Miraldi's First Amendment writing has own numerous awards. he taught journalism at the state university of New York for many years. Twitter: @miral98; email; rob,miraldi@gmail.com.

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