The Washington PostDemocracy Dies in Darkness

No court would convict Trump of incitement. His liability is moral, not legal.

Does the president “deputize the crowd” to commit criminal acts? A recent case concluded that he doesn’t.

For the past two years, President Trump’s populist rhetoric has mobilized a political constituency based on fear, loathing and discriminatory animus toward certain social groups. He calls immigrants “animals.” He denounces Democrats as “evil.” He names the press the “enemy of the people.” Are the appalling actions of the mail bomber, the Louisville grocery-store shooter and the Pittsburgh synagogue shooter attributable to this speech, and if so, does the president bear any responsibility?

If the question is one of moral responsibility, the answer is yes. But if it is one of legal culpability, it’s no: A court recently tested that proposition and did not find Trump liable.

In Nwanguma v. Trump, three protesters sued the president, alleging that he had incited his supporters to assault them at a rally in Louisville in March 2016, during the presidential campaign. Trump pointed at the protesters and said, “Get ’em out of here,” five times, as they were attacked in his clear line of sight. Trump supporters pushed and shoved the protesters and punched high school student Henry Brousseau in the stomach. One of the attackers, Matthew Heimbach, a leader of the white supremacist Traditionalist Workers Party, pleaded guilty to disorderly conduct and indicated in his written statement to the court that Trump was “deputizing the crowd” to physically remove the protesters. Last month, the U.S. Court of Appeals for the 6th Circuit dismissed the case on the grounds that Trump’s exhortations to “Get ’em out of here” did not specifically advocate the crime of assault, and the judgment noted that he had added, “Don’t hurt ’em.”

Existing First Amendment law means that no U.S. court would convict Trump of criminal incitement or award civil damages on the basis of his speech thus far. Protecting citizens from demagogic politicians has never been the mandate of incitement law, which has been used historically in the United States to safeguard public order and to protect the state from those seeking to overthrow it. Nearly 100 years ago in Schenck v. United States, the Supreme Court confirmed that the government could legitimately suppress words “of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” The majority of defendants convicted of incitement in the 20th century were socialist activists. In 1969, the Supreme Court defanged incitement law in Brandenburg v. Ohio by reversing the conviction for incitement of Ku Klux Klan leader Clarence Brandenburg, who, in a televised statement, called for a march on Congress and warned “if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.” The Supreme Court in Brandenburg created a stringent three-part test of incitement in which the speaker had to directly advocate a crime, and the offense had to be both imminent and likely to occur. Clearly, Trump did not directly advocate the crimes of shooting Jewish worshipers or African American shoppers, or mailing pipe bombs to his political opponents, and therefore he could not be held liable for these heinous acts in a court of law.

Nowadays, the majority of defendants are charged with incitement when they instigate a riot or brawl, although some states, like Connecticut and Virginia, have passed hate-crimes legislation to ban cross-burning or the hanging of nooses with the intent to intimidate. This is the reality of the law of incitement, and to even contemplate any change in this state of affairs, Congress would have to pass tough new hate-speech legislation. Even in the unlikely event that such legislation passed, the conservative majority on our present Supreme Court would most likely strike this down, citing the 1992 precedent in R.A.V. v. City of St Paul that prohibits the government from content or viewpoint discrimination.

How much responsibility does Trump bear for the synagogue shooting in Pittsburgh?

It’s different in Europe, where a number of countries ban Holocaust denial (including Austria, Germany and France) and incitement to hatred (including Germany, England and Wales). European nationalist politicians have been convicted of incitement for much milder speech than Trump’s. In 2016, for example, Dutch politician Geert Wilders was found guilty of inciting discrimination against Moroccans at a Freedom Party rally in the Netherlands. Danish politician Jesper Langballe was convicted in 2011 for inciting hatred against Muslims when he said that Muslim girls were killed by their fathers and raped by their uncles.

But if Trump cannot be held criminally accountable based on his speech, a credible argument can be made that he has made a major contribution to the climate of violent political contestation and bears a different sort of responsibility for a measurable increase in hate crimes since 2016. In assessing whether a speaker’s words have contributed causally to violence, courts consider the content of his message and the context in which the words are uttered, and social science research tells us that the status and authority of the speaker is also a crucial contributing factor.

As president of the United States, Trump now holds the highest position of political authority on the planet. His words carry more weight than those of any other human being alive. Eric Holder, who was attorney general under President Barack Obama, and Rep. Maxine Waters, a California Democrat, have erred in appearing to encourage physical confrontation with Republicans. But they are not the commander in chief, with the most powerful military and government institutions around. Furthermore, Trump has created a mass personality cult among a minority of Americans who see him as charismatic and authentic and who are visibly roused by his populist and nationalist oratory.

The content of his speeches and tweets regularly demonize his opponents. He singles out individuals for his opprobrium and has blamed George Soros, the billionaire liberal, for paying protesters to march against him in Washington, and paying thousands of Central Americans to walk northward in a caravan to the United States. There is a regular playbook of individuals whom he frequently blames, and the list of individuals who were targeted by the mail bomber reads like Trump-rally talking points.

Trump doesn’t understand how anti-Semitism works. Neither do most Americans.

As the genocides in Rwanda and Yugoslavia in the 1990s demonstrated, dehumanizing language by politicians is one of the first signs of a looming political conflagration. Trump has called immigrants from Latin America “animals” and compared them to snakes. He has repeatedly encouraged and condoned violence, saying that he would like to punch a protester in the face, and offering to pay the legal fees of those who assault protesters. At his rallies, the ominous atmosphere is thick with threat. He has pointed at individual journalists and referred to them as bad and dishonest people, leading audiences to turn on them.

For the last 100 years, courts have emphasized context as one of the most crucial factors in assessing the implications of speech. Words that are benign in one setting may be inciting in another. It is common knowledge that our political culture has become more divided and unstable, and this makes threatening or denigrating messages that much more dangerous. The state of Trump’s audience is visibly heightened and agitated. Despite the fact that Republicans control all three branches of government, Trump and his supporters feel aggrieved, and repeatedly express the view that the system is rigged against them.

Studies show that a population is more receptive to inciting speakers during times of political instability, widespread fear and insecurity. Incitement to violence is more likely to be acted on if the speaker declares that there is a direct existential threat to the audience, and Trump has built his political career on stoking fear. Currently, both sides of the political spectrum articulate the perspective that there is an existential threat to our democracy and that the other side is not just misguided but positively seditious and bent on destroying our constitutional political system and American way of life.

There is not, nor is there likely to be, a clear and direct connection between Trump’s rhetoric and specific acts of violence, even if the perpetrators may be inspired by it. On the other hand, the claim that his speeches and tweets have mobilized discriminatory animus and have elevated the probability that a small number of his supporters will act violently is compelling. Trump does not bear legal responsibility for inciting violence. Moral responsibility is another matter.