4 ms·

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 fu

• 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
          • mlyle 6y ago
            > Unless one of those "many people" is Lynn Wood himself, that doesn't count 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.
            • Natsu 6y ago
              We were discussing imminence, though, and you switched targets without actually addressing how Lynn Wood's statements meet the imminence prong of the test. You can't refute statements about one prong of the test by hopping on another. You're supposed to meet all prongs of the test. 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.
  • 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.