Another Big Lie: Incitement is in Fact All About Context
By Eric Segall
The defense team defending Donald Trump said on several occasions Friday and Saturday that incitement is "only about the words of the speech," and that events that happened before and after that speech are irrelevant. Although the requirements for incitement for criminal conviction do not technically apply to impeachments, it is beyond doubt that even in criminal trials context is often the deciding factor in incitement cases. Trump's lawyers are just flat out wrong on this, but it is easy to see why they are making this demonstrably false argument. They don't want to admit the months of lying, inciting, and taunting by Trump, all of which led to the tragic attack on the Capitol.
Under the landmark case Brandenburg v Ohio, to be guilty of incitement a defendant must have intended to cause imminent violence and his words and actions were likely to cause that violence. The defendant in Brandenburg was a KKK leader who made numerous bigoted statements about Jews and Blacks. In the opinion striking down the law, even though it was quite short, the Justices went through what happened before and during the speech in some detail. In most incitement cases, the only way to decide whether the speech was likely to cause imminent harm is to understand the context of the speech. This common-sense idea is borne out by both other Supreme Court cases and lower court cases.
In Watts v. United States, a Vietnam War protester said the following during a demonstration on the grounds of the Washington Monument: "They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J."
Based on this statement, the defendant was convicted of “knowingly and willfully threatening the President,” thereby violating federal law. The Supreme Court overturned the conviction in a short opinion. After summarizing the language of the statute, the Court said that the defendant could be found guilty only if he uttered a true threat and then said the following: "We agree with petitioner that his only offense here was 'a kind of very crude offensive method of stating a political opposition to the President.' Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise."
The lower courts understand that context is often key to deciding whether speech is constitutionally protected or whether it is incitement. In Ohio v. Smith, the defendant was convicted of "inciting to violence" for statements made while police were arresting other people for drug violations. In upholding the conviction and going through the facts, the court found relevant that the threats were made in an area of "high drug and gang violence activity," that police officers had previously "received threats on their lives from gang members in the area," that the "crowd grew much calmer and began to disperse" after the defendant was arrested, and that the defendant had been "stopped and frisked" by the police "four days prior to his arrest." All of that context was important to determine whether the defendant's actual words used on the day in question could properly be considered incitement.
There are legions of other cases saying exactly the same thing: context is often crucial to understanding the difference between protected speech and illegal incitement. The context of Trump's speech, of course, is a several-month effort to discredit the election results through words and deeds; the whipping up of his base over an alleged illegal election; the calling for a huge rally at the very time and place that Congress would meet to finalize the election; the appearance of Trump at that rally exhorting the crowd not to accept the results of the election; his telling them to march to the Capitol; his telling them he would be "with them"; and then his not taking any official steps to stop the violence until hours after he knew it began.
If that isn't incitement, then almost nothing is.