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.
Yes, the speech was long and much of it was basically a grievance monologue, with long stretches about fraud, weak Republicans, media lies, etc. But a counter-point to your argument is that this isn't about the inflammatory words alone; it's about directing the crowd to a specific location (the Capitol), at a specific time (as certification was happening), with a specific purpose (“take back our country,” “show strength”). Even if the words aren’t violent on their face, the instructional quality of that part of the speech is what critics lean on.
The listener-state question you raise is real: Claiborne emphasizes that you don’t lose First Amendment protection because your listeners are hot-headed. But the context could still matter in a narrower way: if a speaker *knows* the crowd is primed, the sequencing and specificity of the instructions can be weighed differently.
I feel like if you were to consider the circumstances on January 6th in isolation, President Trump's comments would likely meet the test for incitement under Brandenburg. However, President Trump has a long history of making inflammatory comments with colorful language and clearly those at the rally were people who understood his character. If you factor in all of his previous tweets, public statements, celebrity personality and identity, it becomes less convincing that his comments on January 6th were anything other than part of his typical boisterous rhetoric. This gives me a few questions on how the court should view these exceptional circumstances. Should it look at the cult of personality around Trump? Should it consider his prior history of mean tweets and similar comments? Do these things mitigate the comments on January 6th or exacerbate the extent of their harm? It's such a unique situation and it also makes me wonder whether this could be a non-justiciable political question. Seeing as how Trump ran again four years afterwards and won the popular vote, is that evidence that the people have decided it's a non-issue?
Interesting take! I think, though, the key is that Brandenburg looks at the specific speech act in its *immediate* context, not a speaker’s general reputation for bluster. Prior “mean tweets” don’t dilute intent if the January 6 language was directed to produce imminent lawless action. Courts also wouldn’t treat this as a political question; incitement has always been justiciable. And voters’ later support can’t retroactively cure a potential First Amendment violation.
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.
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.
Yes, the speech was long and much of it was basically a grievance monologue, with long stretches about fraud, weak Republicans, media lies, etc. But a counter-point to your argument is that this isn't about the inflammatory words alone; it's about directing the crowd to a specific location (the Capitol), at a specific time (as certification was happening), with a specific purpose (“take back our country,” “show strength”). Even if the words aren’t violent on their face, the instructional quality of that part of the speech is what critics lean on.
The listener-state question you raise is real: Claiborne emphasizes that you don’t lose First Amendment protection because your listeners are hot-headed. But the context could still matter in a narrower way: if a speaker *knows* the crowd is primed, the sequencing and specificity of the instructions can be weighed differently.
I feel like if you were to consider the circumstances on January 6th in isolation, President Trump's comments would likely meet the test for incitement under Brandenburg. However, President Trump has a long history of making inflammatory comments with colorful language and clearly those at the rally were people who understood his character. If you factor in all of his previous tweets, public statements, celebrity personality and identity, it becomes less convincing that his comments on January 6th were anything other than part of his typical boisterous rhetoric. This gives me a few questions on how the court should view these exceptional circumstances. Should it look at the cult of personality around Trump? Should it consider his prior history of mean tweets and similar comments? Do these things mitigate the comments on January 6th or exacerbate the extent of their harm? It's such a unique situation and it also makes me wonder whether this could be a non-justiciable political question. Seeing as how Trump ran again four years afterwards and won the popular vote, is that evidence that the people have decided it's a non-issue?
Interesting take! I think, though, the key is that Brandenburg looks at the specific speech act in its *immediate* context, not a speaker’s general reputation for bluster. Prior “mean tweets” don’t dilute intent if the January 6 language was directed to produce imminent lawless action. Courts also wouldn’t treat this as a political question; incitement has always been justiciable. And voters’ later support can’t retroactively cure a potential First Amendment violation.
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.