Re:Reddit bans subreddit group “r/DonaldTrump”
by jcranmer on Friday January 08, 2021 @04:22PM
(#25690687)
The exact words that Trump used in his speech on Wednesday morning was something along the lines of "we're going to march down to Congress and tell them what we think." By itself, that is not damning, and would (and should!) easily be protected speech.
However, context may tell a different story. It was known to anyone who follows Qanon conspiracy theories that Wednesday was one of the days of the predicted coup (of course, virtually every other milestone in the past two months have had the same prediction and came and passed without incident). It is totally reasonable to assume that some of the crowd at that rally were Qanon believers ready to participate in a coup, were listening for the magic words to start the coup, and took these words to be them. I actually expect some of the investigations to uncover people who followed this exact chain of events. In short, that people took his words to be an incitement to imminent lawless action is a conclusion that I expect to be substantiated by facts.
But even that is not enough to say that Trump fails the Brandenburg test (and this is why my personal legal knowledge starts getting shaky): it's not enough to say that people were incited; you have to demonstrate that Trump expected (or should have expected) that these people would be incited by those words. And... honestly? I'm not sure if that's the case. Given the knowledge of what happened later, it would now (to me) be willful ignorance to suppose those words would not be incitement, but I'm not sure I can say that the same is true merely hours before it happened.
On Wednesday night, I watched a livestream with several lawyers talking about what laws were and weren't broken [1] on Wednesday. When it comes to Trump's legal woes, the main phrase was "matter of first impression": no court has heard a similar enough case for there to be any guideline on how the facts and the law should be interpreted. Does it matter that it's the President saying these words? Does it matter that he is seeming to endorse attacks on another branch of government? There's no precedent... we don't know... and we can't predict.
[1] Definitely no treason, and it doesn't look like anything qualifies as felony murder in DC or federal law, although this was obviously before we knew a police officer died. Definitely sedition though!
However, context may tell a different story. It was known to anyone who follows Qanon conspiracy theories that Wednesday was one of the days of the predicted coup (of course, virtually every other milestone in the past two months have had the same prediction and came and passed without incident). It is totally reasonable to assume that some of the crowd at that rally were Qanon believers ready to participate in a coup, were listening for the magic words to start the coup, and took these words to be them. I actually expect some of the investigations to uncover people who followed this exact chain of events. In short, that people took his words to be an incitement to imminent lawless action is a conclusion that I expect to be substantiated by facts.
But even that is not enough to say that Trump fails the Brandenburg test (and this is why my personal legal knowledge starts getting shaky): it's not enough to say that people were incited; you have to demonstrate that Trump expected (or should have expected) that these people would be incited by those words. And... honestly? I'm not sure if that's the case. Given the knowledge of what happened later, it would now (to me) be willful ignorance to suppose those words would not be incitement, but I'm not sure I can say that the same is true merely hours before it happened.
On Wednesday night, I watched a livestream with several lawyers talking about what laws were and weren't broken [1] on Wednesday. When it comes to Trump's legal woes, the main phrase was "matter of first impression": no court has heard a similar enough case for there to be any guideline on how the facts and the law should be interpreted. Does it matter that it's the President saying these words? Does it matter that he is seeming to endorse attacks on another branch of government? There's no precedent... we don't know... and we can't predict.
[1] Definitely no treason, and it doesn't look like anything qualifies as felony murder in DC or federal law, although this was obviously before we knew a police officer died. Definitely sedition though!