February 17, 2017 – Everyday we hear the brash talk from our newest elected official who made the historic trek from the corner office to the oval office–to take office as the most powerful executive office in the world. Yet, each time he begins his oratory, we cringe, as the vitriolic verbiage–spewed like a cataclysm of accidental thoughts colliding with the boldness of uncensored speech. It symbolically marginalizes those who disagree with his positions and illustrates his unwaivering contempt those who report on it. Such vitriolic outbursts not only rekindle debate around his mental stability, but whether he is acting in the best interests of the American people, or more specifically–a foreign government who helped him get elected. The result, a dark cloud is cast upon his judgment. In contrast, long-serving politicians know that decorum and the appearance of propriety, are often more important than the spoken word itself. The ability to assuage fears–being careful not to stoke them–and having the ability to put reason above aggression and ego–this is what well-tempered politicians know how to do. Yet, in stark contrast, Trump’s speech is routinely filled misinformation, misalignment of facts to actual events, with rhetoric that can infuriate the most tolerant of listeners. The days of well-crafted speech we have become accustomed from our former leader-in-chief, is now replaced by oratory that is full of disdain and contempt. With inflammatory jargon that incites his listeners on a very basic–visceral level. It is in essence a call to arms–as a fleeting imperative to engage in imminent lawless action–imminent violence–else our country and way of life will be unwittingly and contemporaneously be stolen from under our very grasp.
Yet, just over a month ago, our new leader made statements inciting violence at televised pre-election campaign rallies. In his address, he engaged in child-like non-sequitorial banter that clearly provoked imminent lawlessness. In almost every rally, he promoted his intolerance for those with differing views. He encouraged those in attendance to punch or take down anyone – including those in the crowd – who oppose his point of view – yelling “knock the cr*p out of them.” This alone is provoking violence–these are “fighting words.” More pointedly, such an assault and imminent battery was caught on camera at one of his events–contemporaneous with his statements advocating imminent lawless action. He also provided additional incentives by stating he would pay for the legal bills of those who take physical action against those in the crowd who protest him. There is no mistaking, that this is how unprovoked acts of aggression and inciting imminent lawlessness takes place. At another campaign rally–knowing that the Democratic National Convention had been hacked, then candidate Trump encouraged the Russians to “hack” Hillary Clinton’s emails–while engaging in vociferous chants and encouraging audience participation in his battle cry to “lock her up!” Not only is this conduct unbecoming of a presidential candidate of the free world–it is by it’s very nature the criminal inducement to imminent lawless action–which at its core is unprotected speech–speech that at its core, is unworthy of any the First Amendment protection. Such incitement can constitute a criminal act by inciting violence against others–where imminent harm can, and as was carried out.
Limitations on Free Speech–Most Americans Do Not Know That “Free Speech” is Not Absolute
The First Amendment provides that the right of the people and that of the press shall not be infringed.
The exact language sets forth:
“Article I – Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Throughout our years of jurisprudence, the US Supreme Court has interpreted the First Amendment to give wide latitude to speech of the people and of the press. However, the limitations on speech the Court determined to fall outside the limits of permissible speech and therefore considered “unprotected speech” include:
- Fighting words
- Incitement to imminent lawless action
- Solicitations to commit crimes
- Defamation (including libel and slander)
- Blackmail
- True threats
- Perjury
- Obscenity
- Child pornography
- False & Misleading Commercial Speech
To look back at historical underpinnings of the first amendment regarding speech–words used to incite imminent lawless action, can be seen in the 1969, U.S. Supreme Court case Brandenburg v. Ohio . In that case the US Supreme Court held that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe 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.” In other words a state can’t prevent free speech unless there is imminent danger of inciting violence.
In Brandenburg, the Court held that “mere advocacy”—even of violence—cannot be made criminal “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Such actions clearly took place at televised Trump rallies.
A more difficult analysis–is whether the words Trump used constitute a threat under federal law. Under 18 U.S.C.A. § 875 (c). That analysis begins when their is an offense to transmit “in interstate or foreign commerce any communication containing … any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.” It can be argued that the words that Trump used in his televised rallies that focused on those in attendance that ‘he’ felt were ‘disrespectful’ to him–encouraging others in attendance to “knock the cr*p out of them” which did in fact take place on camera–in addition to statements that second amendment people take up arms to take a shot a Hillary–thereby inciting violence against a competing candidate. Although the immediacy of the inciting “fighting words” was not immediately to be carried out with regard to Hillary Clinton– only because imminent contact was not possible, as Hillary Clinton was not present at the Republican National Convention (RNC) or at his rallies. Nevertheless such statements can be seen as inciting violence.
More pointedly, to violate the federal interstate communications statute, courts have held that such harmful speech must constitute a “true threat.” Such a true threat however, does not require the “threat” to be “true” or that the speaker is able to and intends to carry it out. Instead, a true threat is a threat communicated as a threat and where such reasonable person understands it to be a threat. Under this standard, Mr. Trump may be found guilty, if in fact Hillary Clinton, or a ‘reasonable’ person in her position would feel threatened. In the recent case of Elonis v. United States, Justice Alito wrote in his concurrence that: “True threats inflict great harm and have little if any social value. A threat may cause serious emotional stress for the person threatened and those who care about that person, and a threat may lead to a violent confrontation.” Such is the statements inciting violence by Trump in Speech-Gate: where his statements have no social value and lead to violent confrontations that he himself advocated.
And as the US Supreme Court ruled in 1973, in Hess v. Indiana, exactly what constitutes imminent lawless action. It stated that for speech to lose First Amendment protection, it must be directed at a specific person or group and it must be a direct call to commit immediate lawless action. The time element is critical. The Court wrote that “advocacy of illegal action at some indefinite future time … is not sufficient to permit the State to punish the speaker’s speech.” Yet, in addition to advocacy of illegal action, there must be an expectation that the speech will in fact lead to lawless action. I submit that the statements made by candidate Trump and now president Trump has not only teetered that line–but in some instances, may have actually crossed it.