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It is tragic this is the law. It explicitly removes agency from those who commit crimes. The rioters/insurrectionists were all bad people who made bad decisions

It is tragic this is the law. It explicitly removes agency from those who commit crimes. The rioters/insurrectionists were all bad people who made bad decisions on their own accord. The concept of incitement dilutes their responsibility. Trump didn't hold a gun to their head and make them storm the capital. Hell, he didn't even suggest it. 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.

Apocryphon 6y ago
Incitement is a legal concept that has existed for centuries. You are free to make your opinion against it, but it’s been long-established and you’d have to do more to remove it other than reducing it to a “thought crime.”
Natsu 6y ago
Legally, incitement is actually pretty constrained to immanent lawless action--i.e. someone doing something bad right now, not at some undefined point in the future, in clear terms. The Volokh Conspiracy discussed this just the other day: https://reason.com/volokh/2021/01/08/can-president-trump-be-impeached-and-removed-on-the-grounds-of-incitement/ https://reason.com/volokh/2021/01/08/can-president-trump-be-...
- ZephyrBlu 6y ago
  Interesting read. My TL;DR is that from their perspective, what Trump has said does _not_ constitute incitement of violence.
  - mlyle 6y ago
    Trump has frequently amplified Lin Wood. 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?
    - Natsu 6y ago
      The key word is usually immanent 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.
      - eropple 6y ago
        Either they've all "gone nuts", or things are actually that serious. (It is the latter.)
      - mlyle 6y ago
        > The key word is usually immanent 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.
        Natsu 6y ago
        > Given that many people are explicitly talking about January 18th and January 19th violent action 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 https://en.wikipedia.org/wiki/Brandenburg_v._Ohio
  - ashtonkem 6y ago
    Pinning incitement onto Trump will be a bit tricky, if nothing else that he's so damned inconsistent and incoherent that it's really hard to tell what he intends to do. He's done enough other illegal shit that there's no real need to try and nail him with incitement, because it might reduce other cases elsewhere. 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.
- dredmorbius 6y ago
  That is an exceptionally poor argument, verging on complete bullshit. If that's anywhere near the best case that can be made, Trump is toast.
JMTQp8lwXL 6y ago
This is what Trump said during his January 6th speech: "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."
- throwaway201103 6y ago
  What does this sound like to you? Are you reading "storm the Capitol" in those words?
  - sigotirandolas 6y ago
    I also don't see anything particularly damning in those words, it seems usual Trump gibberish. But then, even before he announced the march ("Big protest in D.C. on January 6th. Be there, will be wild!"), many of his hardcore followers were already waiting for him to say something, anything that they could interpret as a coordinated action (all the "cross the rubicon" talk). So I'd say that this is not just a matter of taking some isolated phrases, but rather looking at the whole context of all that happened before, during and after the election and asking the question "To which degree was he consciously contributing to create and direct this climate that caused criminal action?"
    - mcot2 6y ago
      The only parallel is how a Mob boss speaks.
      - sigotirandolas 6y ago
        Yeah, don't interpret my comment as a belief that Trump was unaware and didn't know anything could happen. You would need to be dumb to believe that, for example, he didn't know anything about the Proud Boys or QAnon as he claimed.
ashtonkem 6y ago
This standard came in place after prior precedent jailed someone for peacefully protesting the draft. Be very careful what speech you let the government criminalize, it usually goes places you didn't expect. 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.
wes-k 6y ago
If you spread lies about me to my neighbors and encourage them to vandalize my house, I sure hope you'll be held partly responsible.

Apocryphon 6y ago

Incitement is a legal concept that has existed for centuries. You are free to make your opinion against it, but it’s been long-established and you’d have to do more to remove it other than reducing it to a “thought crime.”

Natsu 6y ago

Legally, incitement is actually pretty constrained to immanent lawless action--i.e. someone doing something bad right now, not at some undefined point in the future, in clear terms. The Volokh Conspiracy discussed this just the other day: https://reason.com/volokh/2021/01/08/can-president-trump-be-impeached-and-removed-on-the-grounds-of-incitement/ https://reason.com/volokh/2021/01/08/can-president-trump-be-...

ZephyrBlu 6y ago
Interesting read. My TL;DR is that from their perspective, what Trump has said does _not_ constitute incitement of violence.
- mlyle 6y ago
  Trump has frequently amplified Lin Wood. 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?
  - Natsu 6y ago
    The key word is usually immanent 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.
    - eropple 6y ago
      Either they've all "gone nuts", or things are actually that serious. (It is the latter.)
    - mlyle 6y ago
      > The key word is usually immanent 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.
      - Natsu 6y ago
        > Given that many people are explicitly talking about January 18th and January 19th violent action 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 https://en.wikipedia.org/wiki/Brandenburg_v._Ohio
- ashtonkem 6y ago
  Pinning incitement onto Trump will be a bit tricky, if nothing else that he's so damned inconsistent and incoherent that it's really hard to tell what he intends to do. He's done enough other illegal shit that there's no real need to try and nail him with incitement, because it might reduce other cases elsewhere. 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.
dredmorbius 6y ago
That is an exceptionally poor argument, verging on complete bullshit. If that's anywhere near the best case that can be made, Trump is toast.

JMTQp8lwXL 6y ago

This is what Trump said during his January 6th speech: "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."

throwaway201103 6y ago
What does this sound like to you? Are you reading "storm the Capitol" in those words?
- sigotirandolas 6y ago
  I also don't see anything particularly damning in those words, it seems usual Trump gibberish. But then, even before he announced the march ("Big protest in D.C. on January 6th. Be there, will be wild!"), many of his hardcore followers were already waiting for him to say something, anything that they could interpret as a coordinated action (all the "cross the rubicon" talk). So I'd say that this is not just a matter of taking some isolated phrases, but rather looking at the whole context of all that happened before, during and after the election and asking the question "To which degree was he consciously contributing to create and direct this climate that caused criminal action?"
  - mcot2 6y ago
    The only parallel is how a Mob boss speaks.
    - sigotirandolas 6y ago
      Yeah, don't interpret my comment as a belief that Trump was unaware and didn't know anything could happen. You would need to be dumb to believe that, for example, he didn't know anything about the Proud Boys or QAnon as he claimed.

ashtonkem 6y ago

This standard came in place after prior precedent jailed someone for peacefully protesting the draft. Be very careful what speech you let the government criminalize, it usually goes places you didn't expect. 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.

wes-k 6y ago

If you spread lies about me to my neighbors and encourage them to vandalize my house, I sure hope you'll be held partly responsible.