As the country reels from the spectacle of a Capitol overtaken and top U.S. officials scrambling for their lives, the House voted on Wednesday to impeach President Trump for, among other things, “inciting violence against the Government of the United States.” Lawmakers are right to insist that Mr. Trump pay the highest price for fomenting a deadly assault on democracy; he should be convicted and banned from holding public office.
But in pursuing this vital end, legislators should ensure that their extraordinary case against Mr. Trump cannot later be construed to broaden the legal definition of incitement in general. “Incitement to violence” is a strictly defined legal concept that allows speech meeting certain criteria to be punished notwithstanding the Bill of Rights. If the closely watched proceedings against Mr. Trump can be interpreted as precedent-setting insofar as the law of incitement is concerned — morally speaking or otherwise — we would risk a perverse result whereby those impeaching Mr. Trump for his abuses in office could make it more perilous for future dissenters and reformers to hold the powerful to account.
Incitement is one of several narrowly delineated exceptions to the First Amendment; others include libel, slander and what are called “true threats.” These categories of harmful expression can be punished by the government despite the First Amendment’s expansive protection of free speech. The problem is that “incitement,” as we use the term colloquially — language aimed to goad others on to action — is a much broader concept than what is recognized under the law.
The legal test for incitement was established by the U.S. Supreme Court in Brandenburg v. Ohio, a 1969 case involving a Ku Klux Klan leader named Clarence Brandenburg who had urged revenge against the federal government but had not prodded his followers to take violent action. The Court found that the Ohio statute under which Brandenburg had been convicted was unconstitutionally overbroad and would deter and punish too much potential speech. The court held that for incitement to fall outside the First Amendment’s protections, three criteria must be met. First, the advocacy must be intended to spur lawlessness; Second, the encouraged lawbreaking must be imminent, or about to happen right away. Third, the speech must be likely to cause such lawbreaking to occur. Before Brandenburg, jurisprudence had defined incitement more loosely, permitting restrictions on speech based on a mere “bad tendency” to bring about a harm the government had a right to prevent.
The tighter Brandenburg test reflected a shift toward a wider berth for political speech that had begun with Justice Oliver Wendell Holmes’s dissent in the 1919 case of Abrams v. United States. That landmark case involved a group of immigrants who were prosecuted under the 1917 Espionage Act for distributing pamphlets opposing U.S. intervention in Russia. Although their conviction was upheld, Holmes’s famous dissent introduced the concept of an open marketplace of ideas, warning Americans to be “eternally vigilant against attempts to check the expression of opinions that we loathe.” Holmes’s analysis set in motion a long series of decisions that over time expanded protections for activists, communists, labor organizers and others voicing controversial or dissident opinions.
Donald Trump is the first modern president to be seriously accused of engaging in incitement himself. At a 2016 campaign rally, he badgered the crowed to remove a group of demonstrators, saying “Get ’em out of here.” The protesters were pushed and shoved and one of them was punched in the stomach as he and the others were forcibly removed. At that point, Mr. Trump said “don’t hurt ’em.” The injured later sued Mr. Trump arguing that he had incited a riot. But in September, 2018 a Cincinnati appeals court found that Mr. Trump’s “don’t hurt ’em” admonition, even if it seemed like an afterthought, meant that he had neither advocated nor intended riotous violence.
If a court were to judge the president’s statements leading up to the Capitol Hill riot, it might well find that the latter two of the three Brandenburg criteria were satisfied: violent mayhem erupted right after Trump’s fiery speech at the Ellipse, meeting the requirements of both imminence and likelihood. But as incendiary and irresponsible as Mr. Trump’s Jan. 6 remarks were, a court would be unlikely to conclude that they advocated violence under the strict operative legal standard.
In his rambling diatribe, Mr. Trump lied brazenly and made bellicose but ambiguous statements like “you have to show strength” and “if you don’t fight like hell, you’re not going to have a country anymore.” In calling upon people to join him in marching to the Capitol, he said that their goal would be to imbue Republicans with “the kind of pride and boldness that they need to take back our country.” He urged marchers to “peacefully and patriotically make your voices heard.” Mr. Trump never quite encouraged violence, legally speaking, and, as he had at the 2016 rally, put on record that the approach to resistance that he contemplated was peaceable.
To many, the context of the last four years made the eruption of violence on Capitol Hill seem anything but shocking, and the case for incitement in the colloquial — and the political — sense seems clear. But the strict legal test for incitement demands that the relationship between the targeted speech and the elicited action to be proximate, meaning that Trump’s long track record of prior incendiary statements cannot be grounds for a finding of incitement on Jan. 6. Evidence that violence was plotted ahead of time, and that some marauders set off for the Capitol before some of the president’s most inflammatory remarks, might also undercut any legal finding that Mr. Trump’s words were a primary cause of the havoc.
That the law as it stands probably would not recognize the president’s remarks as incitement does not necessarily mean that it should not do so. Mr. Trump’s claim earlier this week that his remarks outside the White House were “totally appropriate” is preposterous: He deceived his supporters, disgraced his office and ordered the subversion of democracy. The rise of social media, the heated rhetoric of the Trump era, and recent spikes in hateful speech and hate crimes have raised important questions about whether decades-old First Amendment precedents can adequately arbitrate hazardous speech in an age of digital media and demagoguery. It is reasonable to ask whether a more expansive definition of incitement ought to be considered; for example, if Mr. Trump was found to have been aware of plans for an attack when he spoke, that could color the interpretation of his words. It is also fair to ask whether the authority wielded by those in high positions should inform the incitement test, recognizing, for example, that the legitimization of extreme tactics by a sitting president is far more damaging to democracy than similar claims by an ordinary citizen. Scholars have debated these issues in law review articles, and new ideas may soon work their way into the law.
But as they hastily grapple with Mr. Trump’s unprecedented pillage of constitutional norms, Congress should take care not to inadvertently lower the First Amendment guardrails for speech more generally. In debating the charges against Mr. Trump and at his trial, members of Congress and those commenting on the issues should make clear that their vernacular references to incitement are distinct from how the term is used in its strictly legal sense.
Progressives have a strong stake in keeping the First Amendment carve-out for incitement fairly narrow. Historically, this exacting standard has protected not just right-wing activists like Brandenburg, but also dissenters on the left, including socialists, antiwar protesters, flag-burners and civil rights advocates. In the 1982 case of NAACP v. Claiborne Hardware, for example, the Supreme Court found that a civil-rights leader’s threat to break the “damn neck” of anyone flouting a boycott of white stores was not incitement, even though acts of violence against boycott violators were later committed. The court found no evidence that the organizer ever “authorized, ratified, or directly threatened” violence, and rejected claims that he had a “duty to repudiate” the violence that followed. The leeway the Claiborne court acknowledged for an advocate to “stimulate his audience with spontaneous and emotional appeals” is essential to the work of movement organizing.
Despite Claiborne, conservatives still try to use the doctrine of incitement to deter or punish agitation for social change. In 2016 a police officer sued the Black Lives Matter activist DeRay Mckesson after a rally that Mr. Mckesson organized erupted into violence and the officer was injured — even though there was no evidence or even suggestion that Mr. Mckesson had expressly sanctioned the mayhem. Still, it took an appeal to the Supreme Court to reject lower court rulings that would have held Mr. Mckesson liable for coordinating the protest, gutting the Brandenburg test. (Rather than tossing the case entirely, the court sent it back to Louisiana for further proceedings, meaning that Mr. Mckesson’s legal predicament persists.)
Last year, the South Dakota Legislature, targeting anti-pipeline protests, passed a new law creating a crime of “incitement to riot” that defined riots as acts of violence that can include as few as three people. If the stringent legal test for incitement were watered down in order to punish Mr. Trump, the result could be heightened legal exposure for countless others who deserve protection for their speech and assembly rights. Moreover, the strict standard in the United States for incitement has been influential globally and is referenced in a seminal 2011 U.N. human rights resolution that addresses how religious intolerance can be combated without trampling free expression. Any proposals to ease the U.S. legal standard should take into account the risk of legitimizing authoritarian leaders around the world who use spurious charges of incitement to quash their political opposition.
That the legal doctrine of incitement to imminent violence should not be expediently molded to meet the moment does not mean that Mr. Trump should go unpunished. The framers of the Constitution delineated the parameters of impeachment broadly, knowing they could not foresee every scenario in which it might be warranted. Scholars generally agree that the grounds for impeachment are not limited to committing legally prosecutable crimes; there is a reason the power to impeach was granted to the legislative (and therefore political) branch rather than the judicial (and therefore legal) branch. There is a very strong case that Mr. Trump’s efforts to thwart the Constitution, subvert the election results, encourage insurrection and intimidate officials into obstructing the democratic process meet the impeachment standard.
It is important, as we move toward an exigent impeachment trial, that we avoid conflating what is impeachable with what is illegal. It is up to Congress to decide whether Mr. Trump’s behavior violated his oath to preserve, protect and defend the Constitution. It is up to courts to decide when incendiary language meets the legal standard of incitement, consistent with the First Amendment. In performing its constitutional role in impeachment, Congress should take special care not to alter the constitutional standard for incitement.
Suzanne Nossel (@suzannenossel) is the chief executive of Pen America and the author of “Dare to Speak: Defending Free Speech for All.”
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