| Yes, Trump’s speech clearly does not fall under “fighting words” which leaves only the even harder test (from Brandenburg) of speech that “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” > Saying things that foreseeably move some audience members to act illegally isn’t enough,” notes Eugene Volokh, a First Amendment specialist at UCLA Law School. “Speaking recklessly isn’t enough. The Court was well aware that speech supporting many movements — left, right, or otherwise — that merely moves the majority to political action may also lead a minority of the movement to rioting or worse. It deliberately created a speech-protective test that was very hard to satisfy.” [1] If someone is already causing a pre-planned disturbance a mile away while you are speaking, it’s impossible to argue that the words were an incitement to imminent lawless action in that case. I’m not sure how you get around the fact that an imminent cause-effect relationship is a necessary component of this form of unprotected speech. If the question is whether a political speech falls into the unprotected category of incitement to imminent lawless action, it’s highly probative to that specific charge if the lawless action was pre-planned and already occurring when you spoke. An additional necessary element for incitement is intent. You would have to prove that Trump intended for his supporters to try to actually carry out a riot on that day, despite his calls for them to be peaceful, and how much he stood to lose (did lose) if (when) they were not. To throw another question into the mix, if someone makes a rousing speech which rallies up a crowd, and then after the crowd takes a mile long walk they encounter an existing volatile situation like an ongoing riot, I’d be pretty surprised if the earlier speech can suddenly become illegal unprotected speech based on some true incitement to violence which happens later. I certainly have never heard of any such case of speech that “got the ball rolling” but didn’t actually directly instruct a person or crowd to commit a specific illegal act. [1] - https://reason.com/volokh/2021/01/07/incitement-ordinary-spe... |
Its not if people hearing your words join in the disturbance. (There’s other ways it could, as well.) Again, the fact that a disturbance is under way does not make it impossible for someone to commit incitement with regard to that disturbance. Repeating the same false claim doesn’t make it any less false.