The allegation of ‘incitement’ is the key to the Democrats’ indictment against former President Trump, as it linked his words and actions to the January 6 uprising on Capitol Hill.
House executives this week devoted most of their presentation to the results, broadcasting graphic video footage and audio of the attack on the Capitol – personally endangering Senate members who will vote on the charges.
Their argument is that Trump was responsible for what happened, although he did not join the mob that marched from his January 6 protest near the White House to the U.S. Capitol, where election votes were gathered to clinch Joe Biden’s victory. .
The indictment, which the House passed in January, reads in part: “Donald John Trump was committing high-profile crimes and inciting crimes against the United States government.” Read the whole case here.
But what exactly is incitement? The dictionary definition of “incite”, according to Merriam-Webster, is simple: “to take action: arouse: urge: insist.” Trump made this clear when he instructed his supporters to march in the direction of Capitol Hill from a rally held under the banner of “Stop the Steal”.
But there is a much more detailed definition in US law:
“… the term ‘to incite a riot’, or ‘to organize, promote, encourage, participate or act on a riot’, includes, but is not limited to not to incite or incite other persons to riot, but shall not be deemed to be the mere oral or written (1) advocacy of ideas or (2) expression of faith, it does not involve advocacy of any act or acts of violence or assertion of the right of, or the right to commit or act in such an act. ‘
Federal courts said Trump did not incite a mob in 2016 when he told supporters to turn on protesters who later sued the president.
The New York Times thoroughly investigates how courts viewed “incitement.” Read it here.
The history of ‘incitement’: Oliver Wendell Holmes, the judge of the Supreme Court defending the first amendment, who built the idea that a person cannot shout fire in a crowded theater, built the ‘clear and current danger’ test for speech. He argued that Congress could only regulate speech when it represented a “current danger of immediate evil or an intention to bring it about”.
These words were written in the First World War era, when Congress and President Woodrow Wilson actively curtailed what Americans could say against the government and war effort.
Recently, the Supreme Court has protected all sorts of speeches, such as flag burning, crude political hyperbole, and in this case it is Brandenburg v. Ohio, which makes it possible to advocate for crime as long as it does not incite threatening lawlessness.
Trump’s legal team has repeatedly quoted the case in a legal statement outlining their speech-oriented defense.
You can read Trump’s entire January 6 speech here.