The case dates to 1964. At a Ku Klux Klan rally on June 18, after a film that contained some hateful speech about Black and Jewish people, the defendant gave a short speech at a farm in Hamilton, Ohio. The only arguably inciting part of the defendant’s speech was that “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.”
In other words, the speaker simply said that if suppression continued for a sufficiently long period of time, his organization might have to take vengeance of some unspecified form at some unspecified future time. The defendant in Brandenburg also said that the KKK planned to march on Congress on July 4, but that was over two weeks later, and his speech didn’t indicate that he thought the suppression of White people would have continued for long enough by then that the July 4 march would be the right occasion for any possible revenge.
The defendant in Brandenburg was convicted under the Ohio criminal syndicalism statute for advocating unlawful action to accomplish political reform.
The Supreme Court reversed his conviction, holding that the First Amendment protected “advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Under that standard, the defendant’s speech was protected because there was no lawless action imminent — saying that if suppression continues, some form of unspecified vengeance might have to be taken at some unclear future time (at least more than two weeks away, but probably even later after that), and over 500 miles away, didn’t meet the standard.
In contrast, Trump riled up a mob a short walk from the Capitol right before Congress was scheduled to count the certified electoral votes. Both in his tweets calling on supporters to come to Washington and in his speech at the Washington rally, the president falsely stated that allowing Congress to count the certified electoral votes would “steal” the election from him and his followers. In his remarks and tweets in the days before, he said the goal was to “stop the steal,” that their protest would “be wild,” that “you can’t let [the steal] happen,” and that “they’re not taking this White House. We’re going to fight like hell.”
At his speech on the day of the attack, he told his supporters that they should march to the Capitol to “stop the steal,” which necessarily meant stopping Congress from counting the electoral votes. Mere chanting was hardly likely to stop the count, so this implied forcible action — especially coming after his attorney Rudolph Giuliani urged the crowd to use “trial by combat” to stop the steal at the same rally.
That implication was confirmed by Trump’s other statements in his speech. He stated that Republicans had been too “nice” and were instead “going to have to fight much harder.” He added that “you’ll never take back our country with weakness. You have to show strength and you have to be strong.” He further exhorted that “if you don't fight like hell, you're not going to have a country anymore” and that “they need to take back our country.” Although Trump tried to protect himself by stating that he was sure that the crowd would “peacefully” march to the Capitol, that does not alter the fact that he was inciting the crowd to forcibly stop Congress from counting the certified electoral votes once they got there.
Trump thus clearly incited lawless action (obstructing the operations of Congress is a crime) that was imminent (right after the speech, a short walk away). That he wanted to incite such lawless action is confirmed by reporting that for hours he watched the Capitol attack with pleasure and did not take any steps to stop it by calling out the National Guard or by urging his supporters to stand down.
It is also significant that Trump is the president. In antitrust law, conduct by a monopolist is often treated as illegally anticompetitive even when the same conduct by a non-monopolist would not be treated as such, because the monopolist’s greater power means their conduct is more likely to have anticompetitive effects. A parallel consideration ought to apply under the First Amendment because, compared to incitement by private actors, incitement by a president is much more likely to incite successful lawless action. Presidents have more power to organize large mobs. Further, presidents are in a position to protect their lawless actions by impeding law enforcement, such as failing to call out the National Guard, or by pardoning lawless actions after the fact. The prospect of such pardons may explain why the rioters felt such impunity that they photographed, live-streamed and videotaped their own lawless actions.
Thus, even if one wrongly thought Trump’s incitement would be protected under the First Amendment if he were a private citizen, his incitement should not be protected given his role as president. Indeed, it is not clear that Brandenburg applies to impeachment decisions. But even if it did, or if Trump was subject to a future criminal prosecution unrelated to impeachment, the Brandenburg standard should be lowered for incitements by presidents given their greater danger.
In any event, even if the Brandenburg standard applies with full force to Trump’s incitement, his incitement of imminent lawless action more than suffices to satisfy it. The argument to the contrary is based on misunderstanding of the law and the facts.