SIDEBAR: Reading January 6 Through the First Amendment
The day words turned into action
On January 6, 2021, thousands of people gathered near the White House to protest the certification of the presidential election. The rally began as political expression: fiery, defiant, but within the long American tradition of dissent. Then it became something else. As the crowd marched to the Capitol, broke through barriers, and stormed the chambers of Congress, the question changed from politics to law: when does speech stop being protected by the First Amendment and become part of the crime itself?
The Legal Tests
The First Amendment protects a wide range of political speech, even speech that is angry, false, or deeply offensive. But, over the years, the Supreme Court has developed a few key limits:
Incitement: Speech that is intended and likely to produce imminent lawless action. This standard comes from Brandenburg v. Ohio (1969).
True threats: Statements that seriously express an intent to commit violence against a specific person or group.
Facilitation: Speech that doesn’t just urge others to act but actually helps them do it by giving instructions, plans, or operational details.
If speech doesn’t fit into one of these narrow exceptions, it remains protected, even when it is harsh or irresponsible. The question for January 6 is which, if any, of these exceptions applies.
Applying the Standards
The rally speech that morning contained unmistakably strong language. The crowd was told to “fight like hell” or “you’re not going to have a country anymore.” They were urged to march to the Capitol and “stop the steal.” Supporters saw it as political theater, a metaphor for standing up and protesting. Critics saw it as a direct call to attack.
Under the Brandenburg test for incitement, the key questions are intent and imminence. Was the speech directed toward producing lawless action? And was that action likely to happen right away? Here, both seem plausible. The speech targeted a live event—the certification of the election—happening only minutes away. The crowd was fired up and ready to move. When violence erupted almost immediately, it showed how tightly connected the words and actions were.
It’s harder to call the speech facilitation, since it didn’t provide detailed instructions or tactical plans. Still, other organizers and extremist groups in the crowd had shared online posts and encrypted messages about what to bring, where to go, and how to breach the Capitol. All of this behavior fits the idea of facilitation more closely.
Nor does the rally speech easily qualify as a true threat, because it wasn’t directed at one particular person with a specific threat of violence. The danger was collective, not individual.
So the best fit is incitement: speech aimed at provoking immediate unlawful action, in a situation where that action was clearly likely to occur.
Protected or Not?
Under that reasoning, the January 6 speech falls outside the protection of the First Amendment. It wasn’t abstract debate or symbolic protest; it was a direct call to act at a specific time and place, in defiance of the law. The crowd’s rapid response shows that the words both expressed and mobilized anger.
That doesn’t mean every participant’s speech was unprotected, or that political protest should be chilled. The First Amendment continues to guard robust political expression. But the law also recognizes a line between persuasion and performance, between speaking and doing. On January 6, that line was crossed.
The Courts’ View So Far
Courts have been wrestling with these questions ever since. In Thompson v. Trump (2022), a federal district court in Washington, D.C. refused to dismiss civil suits filed by Capitol Police officers and members of Congress who said they were injured in the attack. The judge held that a jury could find that the rally speech “implicitly encouraged the use of violence or lawless action.”
And just this year, in January 2025, a federal appeals court agreed that the lawsuits could go forward. It ruled that former President Trump is not immune from civil liability for allegedly inciting the riot. The decision doesn’t resolve whether his speech was ultimately protected, but it means the question is serious enough to reach a jury.
The Broader Question
The First Amendment protects political speech because democracy depends on it. But it was never meant to protect violence disguised as speech. The hard question now is how to keep that line bright in an era when words can mobilize thousands in real time.
When does urging political action become incitement or facilitation of violence—and who should decide that line when crowds, social media, and public officials all contribute to the dynamics of a protest that turns violent?
In my opinion, after our discussion about incitement, I failt o see how the comments Trump made on January 6 would not fall under incitement. I can understand the points raised by other classmates that Trump's tweets and language is known to be inflammatory and may lessen the inciteful impact of his language on January 6. But his comments of "fight like hell" and urging protestors to march to the Capitol to "stop the steal" seem to satisfy both the intent and imminent requirements of the Brandenburg test for incitement. The speech directed the protestors to march to the capitol and fight—an unlawful action. The speech was also directed to an ongoing event—the certification of votes to make Joe Biden the next president. It's unclear to me how his language was not incitement. And I think when viewed in light of his tweets right after the 2024 election and right before January 6, in which he repeatedly declared the election as rigged and fraudulent, thus riling up his fans who were then present in D.C. on January 6th, it is even clearer that his language was emant to incite the protestors.
This post had me thinking about how the court balances speech in which the speaker / speech uses inflamatory language, but also uses other statements / contains evidence that can show a watering down of that inflamatory language. I read the full speech for the first time after reading your article, and in the speech Trump made that day, he said: "everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.” Additionally, he used the word "fight" as a figure of speech many times before uttering the phrase: "And we fight. We fight like Hell and if you don’t fight like Hell, you’re not going to have a country any more."
It feels like the statement calling for peaceful patriotism, and the "fight like hell" phrase, should almost cancel eachother out. Because the other instances of "fight" feel almost certainly to me like figures of speech, and I had trouble inferring any other objectively inflamatory language that could definitively be found to directly incite, or produce imminent lawless action, I just feel like the speech didn't meet the test under Brandenburg, especially after Clairborne and Hess.
It also makes me wonder if there is something to the idea that maybe we should look at the event in context. If you wanted to make the argument Trump incited those people on Jan. 6th, maybe it would be more appropriate to consider how riled up the listeners were even before the speech occurred. But something feels wrong about placing blame on the speaker for the emotion and actions / reactions of the listeners.