The Volokh Conspiracy discussed this just the other day:
https://reason.com/volokh/2021/01/08/can-president-trump-be-...
If that's anywhere near the best case that can be made, Trump is toast.
There are others involved in this whole affair that have almost certainly crossed that line, and they should be made into an example by being prosecuted to the fullest extent of the law. There are some things that are not to be tolerated in a democracy if you want to keep that democracy.
On January 6th, people marched on the Capitol, injured many Capitol police members, and broke in while literally calling for Pence's head and having erected a gallows.
On January 7th, Wood said "Get the firing squads ready. Pence goes FIRST."
Is this incitement of violence? Why or why not?
Unless there was someone with an actual firing squad or what have you while he is speaking, it's not directed towards immanent lawless violence. Your own timeline points out that it was made a day later.
Now, that doesn't make it any less repugnant, it just means that this particular speech can't be incitement unless there's some other events that let it fit the standard.
Everyone has gone nuts lately. Even other lawyers like Ken White of Popehat were musing about some events being an "argument for the gallows" on Twitter.
I don't know that word. ;)
"imminent lawless action" and "likely" are the important words here.
Imminent lawless action here usually means there's a specified timeframe (as clarified in Hess v. Indiana). Given that many people are explicitly talking about January 18th and January 19th violent action, it's hard for me to see how this standard isn't met. Daydreaming the overthrow of the government and murder of specific elected officials a week from now is not protected speech, especially when made credible by violent action a few days ago.
Unless one of those "many people" is Lynn Wood himself, that doesn't count. You can't just stitch statements from multiple unspecified people together to meet the requirements. Now, he's said a lot of things and maybe there's something not mentioned here that I don't know about that rises to that standard, but the fact that you think that merely "daydreaming" can rise to the standard shows me that you probably haven't read what they were saying in https://en.wikipedia.org/wiki/Brandenburg_v._Ohio
I completely disagree. The context in which speech is uttered has bearing on whether it is likely to cause immanent [sic] lawless action. If someone else says January 18th, and you provide concrete suggestions and a plan to do so, without mentioning January 18th, you're not magically off the hook.
You're also contradicting Volokh, a well-known and well-respected liberal first amendment lawyer's analysis by vaguely gesturing at one of the cases discussed in that very article.
Yes, but immanence [sic] doesn't mean "right this second". It means at an understood point in the future, not during some undefined and indeterminate timeframe.
If everyone else is talking about violent action January 18th, and then you talk about people you'd like killed in the same general conversation, you don't walk just because you never specified the specific time yourself.
> You're also contradicting Volokh, a well-known and well-respected liberal first amendment lawyer's analysis by vaguely gesturing at one of the cases discussed in that very article.
Argument by authority. We have constitutional lawyers on the other side arguing the bar set in Brandenburg is met by Trump's comments alone. e.g. Niehoff, Somin (who writes on Volokh Conspiracy, too). Let alone after the additional context of a violent outbreak and more outright threats.
And where, precisely, is that proposition found to be found in law or precedent?
> We have constitutional lawyers on the other side arguing the bar set in Brandenburg is met by Trump's comments alone
And now you switch subjects again to Trump's comments when we were discussing Lynn's.
You're trying to gesture at an article you haven't even properly cited to blame a different person entirely which does nothing to establish that the authority gestured at even agrees with you in the first place.
Now, if you have, say, a link to a proper legal analysis saying here are these specific statements by Lynn and this is why we think they meet the tests based on these and these precedents, then go ahead and present that. But if you're just going to continue to switch topics instead of trying to make your claims more precise, then I see no reason to engage further.
Here, I'll even help you:
http://userwww.sfsu.edu/dlegates/URBS513/howtodoa.htm
The issue, so that we don't keep changing topics, should be:
Whether Lynn Wood's January 7th statement "Get the firing squads ready. Pence goes FIRST." meets the test for imminent lawless action.
"Let alone" circling back is too difficult to understand?
> Whether Lynn Wood's January 7th statement "Get the firing squads ready. Pence goes FIRST." meets the test for imminent lawless action.
And you don't think surrounding circumstances matter? E.g. would it be different to say this:
A) When there's an actual firing squad there, and Pence is 200' away? B) When you're at the front of a riled-up crowd, some of whom you know to be armed? C) When there had been violence and people hell-bent on killing Pence the day before, and others you're corresponding with are talking about mounting violent effort against the government in the next week? D) As part of the baseline political discourse when there is no armed crowd and no recent political violence and no conversation about a specific date? E) As part of a middle-school debate, when few tempers are inflamed?
The courts get to decide where "imminent" is, and we don't have a clear standard. This is why legal experts disagree. I think we can probably agree A is not OK and D-E is OK.
If we don't include 'C', it's becomes questionable whether Hitler's speech at the Beer Hall Putsch would be 'incitement', and it seems pretty clear to me that we should include it as such-- if not that, what is? Slightly veiling your coordination and inflammatory language gives you a blank check? I don't think so, and I would hope courts would agree.
I'm not likely to respond to you any further because I do not believe you are discussing in good faith.
(It is the latter.)
For the record, the case of the draft protestor being jailed is where the phrase "shout fire in a crowded theater" comes from. Food for thought.
"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’re never voting 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. So let’s walk down Pennsylvania Avenue."
Perhaps that was the point you were trying to make, of course.
"Under the imminent lawless action test, speech is not protected by the First Amendment if the speaker intends to incite a violation of the law that is both imminent and likely." [0]
There's two sub-tests: intention and imminence. Let's start with was it imminent: the plain text is clear, the time was now-- undoubtedly, the call to action was not an obscure point in the future. Supporters were to immediately go down Pennsylvania Avenue to the Capitol complex. But what was Trump's intention? That analysis transcends the text as written. Therefore, we can't outright dismiss the speech as categorically not incitement, because the text alone is not sufficient in determining if the speech is incitement.
I posted his speech because my original comment's parent poster claimed Trump had not suggested his supporters make their way to the Capitol, which is false.
I'm not familiar with the geography of Washington D.C., but "walk down Pennsylvania Avenue" does not seem to me to be the same as "storm the Capital building".
Now, I suppose it's possible that some other part of the speech actually did incite violence, but if this is the worst part, it is not incitement to violence. Not. At. All.
Further, in that speech quoted, Trump specifically says to his followers that Democrats should not be voting.
This one ain't hard to parse.
I'm not aware that the demonstrators were toting guns.
Really, give it up. If you want to argue that Trump incited violence in this speech, you need to find another quote from it in which he does. The one above is absolutely not incitement, as is completely clear to anyone who is not blinded by partisan rage.
By the way, your country could do with less partisan rage right now.
Sorry dude. We don't play half-blind here for the sake of your argument.
And if you want less "partisan rage"--well, plenty of the chumleys who stormed the Capitol are still at large, we can sure start there! Somehow, in comparison, I think me chuckling at Parler getting their just desserts doesn't even rate. ;)
The oft-displayed photos show bats, a spear, body armor, helmets, etc. The QAnon enthusiasts arrested in Philadelphia were armed. At least one individual has been arrested for carrying a loaded pistol on Capitol grounds. It is utterly fanciful to suggest none of the rioters were armed.
Have you even forgotten Trump's exhortation that the "second amendment people" might "do something" about Hillary Clinton?
In order to believe that Trump did not incite violence you must overlook the way he's been beating the drum and fanning the flames all along. Writing out his meandering, discursive speech tries to remove from the picture what we all know he means and intends.
If you believe X because of evidence Y, it does not follow that Z must also be evidence of X, just because you believe X (even if this belief is correct).
Not having the critical self-awareness to recognize this is likely to lead you to believe all sort of things that aren't really true, as you start thinking that everything you see confirms your existing beliefs, even when it doesn't.
Can you explain why exactly it isn't? This claim is repeatedly made, but it has no backing rationale which I would like to understand.
> "giv[ing] them the kind of pride and boldness they need" (not by intimidating them with threats of violence, which would of course be illegal).
You are immediately excluding lawlessness, which defeats the complete exercise of the test (unless you have additional context to provide, which validates Trump's mental state convincingly excludes unlawful behavior). The point of the test is to examine if there was intent for unlawful behavior. Again, that would transcend the text. We would have to place ourselves in Trump's mind, and examine further, and then create a compelling argument for or against mens rea.
IMHO, incitement isn't real. It's just spreading blame to people who just made sounds come out of their head. It's barely different than a thought crime.