Arguably, the most famous example of non-protected free speech is yelling “Fire” in a crowded theater. However, I’m fairly certain that inciting a riot is also not protected by the first amendment.
Trump has repeatedly claimed that the 2016 election is rigged. It seems to me that an electorate that thinks its election is not “by the people” is more likely to riot (maybe it hasn’t happened in the US, but it’s been somewhat common in other countries).
Could a case be made that Trump’s statements are a violation of the law?
ETA: Well, I suppose " a case could be made" (which is true for virtually anything), but given First Amendment jurisprudence, it would certainly be a losing case. Trump is well within the legal boundaries of the First Amendment to say that the election is rigged.
And, perhaps there’s a distinction between speech which could be a crime, like inciting a riot (what I think the OP is getting at) and speech that might bring about civil liability. He might cross the line into actionable defamation with some of his accusations. I haven’t paid close enough attention to his actual phrasing, but some of his accusations against Clinton might actionable. The standard for a public figure like Clinton is extremely high (actual malice) and famous people don’t usually sue.
I get where the OP is coming from. This kind of speech is incredibly dangerous: Trump is doing exactly the sort of thing that can encourage some on-the-fence lunatics to go over the fence into violence.
However, banning his speech is undoubtedly more dangerous, for a variety of reasons. I think his sort of terrible and dangerous speech must be tolerated in order to avoid a greater evil.
Just to clarify, since I seem behind on Trump’s “incredibly dangerous” speech, but he’s been talking in front of cameras on an almost daily basis for like a year now. What are the most dangerous things he’s said? Is there somewhere I can get a top-10 list or a highlight reel of Trump’s most dangerous phrases?
The three elements to the imminent lawless action test are intent, imminence, and likelihood. Hess v. Indiana clarified this test and stated that advocacy of illegal action at some indefinite future time was not sufficient to permit the State to punish said advocacy.
The statement “If I don’t win, my supporters should start rioting” would probably fail the imminence prong of Brandenburg.
There’s a little bit of a split of authority on how to measure imminence, but many courts say that if the listener has lots of time to reflect on the speaker’s message before deciding to act, then the incitement isn’t sufficiently imminent.
If he said that on election eve, it would be a closer call. And, as with all things First Amendment, ten judges would probably have three different opinions.
Thanks. I see how #1 can be construed as threatening, I suppose. I’m really at a loss for how #2 is supposed to be urging violence or anything illegal. Poll watchers are, I think, routine in most states. I know they have been in the few I’ve lived in.
AFAIK, every state requires poll watchers to be credentialed. In Pennsylvania, the state he was addressing, you have to be a lawyer or law student. You cannot just grab a group of your buddies and head over to the “areas of concern”–his coded language for black precincts–and enter the polling area.
Indeed. There have certainly been interviews with his supporters who see it as a chance to intimidate black people. What he’s calling for is unwise at the very best.
As distasteful as Trump’s comments about the election are, one of the primary reasons we have a First Amendment at all is so that people can speak out about political issues. A country which did not allow people to question the fairness of elections would be the kind of dictatorship we want most to avoid. Imagine if Republicans really were engaging in specific actions to rig the election for Trump, and people who discussed or questioned their activities were silenced and threatened with judicial punishment.
I would call questioning the validity of an election about as pure and necessary an example of free speech as exists, even when it is completely wrong and coming from Trump.
Bolding mine, because people have to be reminded of this. Including Trump who seems like he’d be the first to use censorship himself. Trump started as the typical muckraking rabblerouser and has moved into the position of a dangerous fool, but nothing he’s said so far has reached the level where we want to stop him with the law instead of public opinion and the voting booth. And just to remind people, I can’t think of anything he’s said that’s original, it’s been the same kind of paranoid right-wing speech that’s been on the airwaves and the internet for decades now.
Well, it wasn’t the candidates themselves making the accusations. There’s a difference. Having said that, though I believe that SpoilerVirgin has a good point. I guess it would be undesirable to restrict speech just because there’s no proof of its veracity.