Jonathan Turley on Inciting Riots

While looking up the legal definition of inciting a riot, I came across a post by law professor Jonathan Turley. While no fan of Trump, he wrote that the President’s speech on January 6th do not rise to the legal standard for inciting a riot (Brandenberg v. Ohio from 1969 is the precedent or standard in this type of case):

When I testified in both the Clinton and Trump impeachment hearings, I noted that an article of impeachment does not have to be based on a clear crime but that Congress historically has looked to the criminal code to weigh impeachment offenses. In this current controversy, any such comparison would quickly dispel claims of criminal incitement. Despite widespread, justified condemnation of his words, Trump never actually called for violence or a riot. Rather, he urged his supporters to march on the Capitol to express opposition to the certification of electoral votes and to support the challenges being made by some members of Congress. He expressly told his followers “to peacefully and patriotically make your voices heard.” […]

There was no call for lawless action by Trump. Instead, there was a call for a protest at the Capitol. Moreover, violence was not imminent; the vast majority of the tens of thousands of protesters present were not violent before the march, and most did not riot inside the Capitol. Like many violent protests we have witnessed over the last four years, including Trump’s 2017 inauguration, the criminal conduct was carried out by a smaller group of instigators. Capitol police knew of the planned march but declined an offer of National Guard personnel because they did not view violence as likely.

Thus, Congress is about to seek the impeachment of a president for a speech that is protected under the First Amendment. It would create precedent for the impeachment of any president who can be blamed for the violent acts of others after the use of reckless or inflammatory language.

Turley goes on to note, as I have written, that there’s been no lack of overheated rhetoric from the other side of the aisle … but somehow that’s not inciting a riot. “They can all legitimately argue that their rhetoric was not meant to be a call for violence, but this is a standard fraught with subjectivity.”

It’s a crime when YOU do it, not when WE do it. Is this line of argument from the I’m Rubber and You’re Glue School of Law?

In another post, on retired Senator Ron Paul being banned from Facebook, Turley wrote about the explosion of rage and vitriol:

Even before the riot, Democrats were calling for blacklists and retaliation against anyone deemed to be “complicit” with the Trump Administration. We have been discussing the rising threats against Trump supporters, lawyers, and officials in recent weeks from Democratic members are calling for blacklists to the Lincoln Project leading a a national effort to harass and abuse any lawyers representing the Republican party or President Trump. Others are calling for banning those “complicit” from college campuses while still others are demanding a “Truth and Reconciliation Commission” to “hold Trump and his enablers accountable for the crimes they have committed.” Daily Beast editor-at-large Rick Wilson has added his own call for “humiliation,” “incarceration” and even ritualistic suicides for Trump supporters in an unhinged, vulgar column.

After the riots, the big tech companies moved to ban and block sites and individuals, including Parler which is the primary alternative to Twitter.  Also, a top Forbes editor Randall Lane warned any company that they will be investigated if they hire any former Trump officials.

The riots are being used as a license to rollback on free speech and retaliate against conservatives.  In the meantime, the silence of academics and many in the media is deafening. Many of those who have spoken for years about the dark period of McCarthyism and blacklisting are either supporting this censorship or remaining silent in the face of it. Now that conservatives are the targets, speech controls and blacklists appear understandable or even commendable.

The move against Paul, a long champion of free speech, shows how raw and comprehensive this crackdown has become. It shows how the threat to free speech has changed. It is like having a state media without state control. These companies are moving in unison but not necessarily with direct collusion. The riot was immediately taken as a green light to move against a huge variety of sites and individuals.  As we have seen in Europe, such censorship becomes an insatiable appetite for greater and greater speech control.  Even Germany’s Angela Merkel (who has a long history of anti-free speech actions) has criticized Twitter’s actions as inimical to free speech.  Yet, most law professors and media figures in the United States remain silent.

We are in dangerous times, people. And the danger is not coming from Trump.

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