# Does Trump's rhetoric exceed the bounds of free spech **URL:** \ **Category:** Great Debates\ **Created:** [October 17, 2016, 4:05pm UTC](https://boards.straightdope.com/t/does-trumps-rhetoric-exceed-the-bounds-of-free-spech/768846 "2016-10-17T16:05:45Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 17, 2016, 8:36pm UTC](https://boards.straightdope.com/t/does-trumps-rhetoric-exceed-the-bounds-of-free-spech/768846/21 "2016-10-17T20:36:46Z")
> [@Left\_Hand\_of\_Dorkness](#): > > It’s cause we’re all terrible freakin hypocrites, isn’t it? BOOM, Bricker, you score again! Thanks, as always, for making this important point. It’s a source of continual amazement to me how often people are comfortable with – perhaps even blind to – their application of different standards for conduct or policies they like and conduct or standards they don’t like. ---
**Author:** ![up\_the\_junction](https://avatars.discourse-cdn.com/v4/letter/u/f1d935/32.png) [@up\_the\_junction](https://boards.straightdope.com/u/up_the_junction)\ **Post date:** [October 17, 2016, 8:39pm UTC](https://boards.straightdope.com/t/does-trumps-rhetoric-exceed-the-bounds-of-free-spech/768846/22 "2016-10-17T20:39:13Z")
The US election has been rigged since 2000, has it? ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [October 17, 2016, 8:47pm UTC](https://boards.straightdope.com/t/does-trumps-rhetoric-exceed-the-bounds-of-free-spech/768846/23 "2016-10-17T20:47:30Z")
> [@Bricker](#): > > It’s a source of continual amazement to me how often people are comfortable with – perhaps even blind to – their application of different standards for conduct or policies they like and conduct or standards they don’t like. I took **LHoD** ’s comment as shorthand for the much longer and more tedious rebuttal of this kind of hypocrisy accusation, which has been hashed out dozens of times on this board. One key element of that criticism is that the attack often relies on a logical fallacy: identifying a member of Group A who did one thing, and then another member of Group A who did something that would be hypocritical if the other person had done the same thing. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [October 17, 2016, 8:57pm UTC](https://boards.straightdope.com/t/does-trumps-rhetoric-exceed-the-bounds-of-free-spech/768846/24 "2016-10-17T20:57:12Z")
> [@Bricker](#): > > It’s a source of continual amazement to me how often people are comfortable with – perhaps even blind to – their application of different standards for conduct or policies they like and conduct or standards they don’t like. Given that most people in this thread have not levied the criticism that Trump’s comments about elections being rigged rises to the level of criminal activity, and have refuted it, I think to accurately make the claim of hypocrisy you’d need to find an example of a person claiming previous elections being rigged, while at the same time complaining that Trump’s comments were out of line. ---
**Author:** ![quimper](https://avatars.discourse-cdn.com/v4/letter/q/7c8e57/32.png) [@quimper](https://boards.straightdope.com/u/quimper)\ **Post date:** [October 17, 2016, 8:57pm UTC](https://boards.straightdope.com/t/does-trumps-rhetoric-exceed-the-bounds-of-free-spech/768846/25 "2016-10-17T20:57:22Z")
RESOLVED: it’s protected speech. But are his statements libelous? > [@](#): > > Animals representing Hillary Clinton and Dems in North Carolina just firebombed our office in Orange County because we are winning Defamatory statements made without a shred of evidence are his stock-in-trade… He has a reckless disregard for truth. Couldn’t this be considered actual malice? Or could he claim insanity?:smack: ---
**Author:** ![GIGObuster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gigobuster/32/421_2.png) [@GIGObuster](https://boards.straightdope.com/u/GIGObuster)\ **Post date:** [October 17, 2016, 9:04pm UTC](https://boards.straightdope.com/t/does-trumps-rhetoric-exceed-the-bounds-of-free-spech/768846/26 "2016-10-17T21:04:37Z")
> [@Bricker](#): > > I have nothing to say in defense of Trump. > > But I recall posters on this board opining that the 2000 and 2004 elections were rigged. I don’t recall much backlash for their dangerous ideas. Huh, a lot was about very suspicious irregularities (Butterfly ballot, felons list preventing people from voting, etc.) The ones protesting and intimidating people doing the recount and claiming that the vote was being rigged in favor of Al Gore was the right wing: > **[Brooks Brothers riot](https://en.wikipedia.org/wiki/Brooks_Brothers_riot)** > > The Brooks Brothers riot was a demonstration led by Republican staffers at a meeting of election canvassers in Miami-Dade County, Florida, on November 22, 2000, during a recount of votes made during the 2000 United States presidential election, with the goal of shutting down the recount. After demonstrations and acts of violence, local officials shut down the recount early. > The name referenced the protesters' corporate attire; described by Paul Gigot in an editorial for The Wall Street Journal... > [@](#): > > Hundreds of paid GOP operatives descended upon South Florida to protest the state’s recounts,[1] with at least half a dozen of the demonstrators at Miami-Dade paid by George W. Bush’s recount committee.[2] Several of these protesters were identified as Republican staffers and a number later went on to jobs in the Bush administration.[3] > > The “Brooks Brothers” name refers to the fact that the protesters, in corporate attire, sporting “Hermès ties”[4] were astroturfing, as opposed to local citizens concerned about counting practices. > > The demonstration was organized by Republican operatives, sometimes referred to as the “Brooks Brothers Brigade”,[5] to oppose the recount of 10,750 ballots during the Florida recount. The canvassers decided to move the counting process to a smaller room and restrict media access to 25 feet away while they continued. At this time, New York Rep. John Sweeney told an aide to “Shut it down.”[2][4] The demonstration turned violent, and according to the NY Times, “several people were trampled, punched or kicked when protesters tried to rush the doors outside the office of the Miami-Dade supervisor of elections. Sheriff’s deputies restored order.” DNC aide Luis Rosero was kicked and punched. Within two hours after the riot died down, the canvassing board unanimously voted to shut down the count, in part due to perceptions that the process wasn’t open or fair, and in part because the court-mandated deadline was impossible to meet.[6][7][8] ---
**Author:** ![Running\_with\_Scissors](https://avatars.discourse-cdn.com/v4/letter/r/a183cd/32.png) [@Running\_with\_Scissors](https://boards.straightdope.com/u/Running_with_Scissors)\ **Post date:** [October 18, 2016, 2:01am UTC](https://boards.straightdope.com/t/does-trumps-rhetoric-exceed-the-bounds-of-free-spech/768846/27 "2016-10-18T02:01:34Z")
> [@quimper](#): > > RESOLVED: it’s protected speech. But are his statements libelous? > > Defamatory statements made without a shred of evidence are his stock-in-trade… He has a reckless disregard for truth. Couldn’t this be considered actual malice? He also neglected to mention that Democrats started a [GoFundMe page](https://www.gofundme.com/reopen-a-nc-republican-office-2ukuprzy) (whose target was reached in 40 minutes) to help pay for the damage. ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [October 18, 2016, 2:14am UTC](https://boards.straightdope.com/t/does-trumps-rhetoric-exceed-the-bounds-of-free-spech/768846/28 "2016-10-18T02:14:37Z")
> [@Bricker](#): > > I have nothing to say in defense of Trump. > > But I recall posters on this board opining that the 2000 and 2004 elections were rigged. I don’t recall much backlash for their dangerous ideas. Do you have a cite for that? Not that I doubt it happened, I’m just curious to see which posters in 2000 and 2004 were also candidates for major political parties, who routinely get thousands and thousands of people to show up at rallies just to hear them speak. ---
**Author:** ![Mijin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mijin/32/9369_2.png) [@Mijin](https://boards.straightdope.com/u/Mijin)\ **Post date:** [October 18, 2016, 3:25am UTC](https://boards.straightdope.com/t/does-trumps-rhetoric-exceed-the-bounds-of-free-spech/768846/29 "2016-10-18T03:25:45Z")
I think the current line for incitement is basically in the right place. When Trump loses, if he publicly calls on his supporters to riot, then at that time he’s guilty of incitement. But, in itself, saying the election’s rigged is no more a guarantee of riots than saying the world is run by the lizard illuminati. I agree there’s some danger in him saying that but right now it’s protected speech. ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [October 18, 2016, 3:46am UTC](https://boards.straightdope.com/t/does-trumps-rhetoric-exceed-the-bounds-of-free-spech/768846/30 "2016-10-18T03:46:06Z")
> [@Mijin](#): > > When Trump loses, if he publicly calls on his supporters to riot, then at that time he’s guilty of incitement. I think that’s a big maybe. Bone gave en excellent rundown of current 1st Amendment precedents in post #7. It would probably depend on the specific wording of his “call … to riot”. If it was something very specific like “I want everyone within the sound of my voice to gather tonight at 10:00 PM at your city hall and burn that motherf\*\*\*\*\* down”, it might be a criminal offense. If it was something more vague like “You people shouldn’t stand for this. This election was rigged. You need to get out on the streets with pitchforks and torches and show them that you won’t stand for it.” Then it’s still probably protected speech. But, like Richard Parker said, “ten judges would probably have three different opinions.” ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [October 18, 2016, 4:06am UTC](https://boards.straightdope.com/t/does-trumps-rhetoric-exceed-the-bounds-of-free-spech/768846/31 "2016-10-18T04:06:28Z")
The clearest example of inciting a riot that I can think of in recent days was [Michael Brown’s step-father shouting “burn this bitch down!”](https://www.youtube.com/watch?v=MLlDzWt7TPc&feature=youtu.be&t=50s) (which seems to have worked). It was enough to get Mr. Head arrested and charge with inciting a riot, but I don’t know if he ultimately got convicted or not. ---
**Author:** ![septimus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/septimus/32/410_2.png) [@septimus](https://boards.straightdope.com/u/septimus)\ **Post date:** [October 18, 2016, 8:34am UTC](https://boards.straightdope.com/t/does-trumps-rhetoric-exceed-the-bounds-of-free-spech/768846/32 "2016-10-18T08:34:57Z")
> [@Bricker](#): > > But I recall posters on this board opining that the 2000 and 2004 elections were rigged. I don’t recall much backlash for their dangerous ideas. Oh my. Allegations about “rigging” in the 2000 and 2004 elections were made after the election and were supported by credible and specific evidence. Your Party’s dog is whining before the election, with his “evidence” being just that he’s down in the polls. And, unlike your Party’s dog, Gore and Kerry did not encourage their supporters to get out on Election Day and harass voters in precincts leaning toward the other Party. But do please keep wallowing in your “Both sides do it. Nanner nanner nanner” feel-good delusions. Heaven forbid that you should ever have a clue! ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [October 18, 2016, 4:50pm UTC](https://boards.straightdope.com/t/does-trumps-rhetoric-exceed-the-bounds-of-free-spech/768846/33 "2016-10-18T16:50:20Z")
> [@Bricker](#): > > It’s a source of continual amazement to me how often people are comfortable with – perhaps even blind to – their application of different standards for conduct or policies they like and conduct or standards they don’t like. Sometimes, when something constantly amazes you, it’s a REAL GOOD IDEA to double-check and be sure you understand what the hell is going on. Sometimes the source of astonishment is based on misunderstanding, or even on your own biased view of events. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [October 18, 2016, 5:03pm UTC](https://boards.straightdope.com/t/does-trumps-rhetoric-exceed-the-bounds-of-free-spech/768846/34 "2016-10-18T17:03:02Z")
> [@Richard\_Parker](#): > > 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. I have never been able to understand the difference. If I say “Come on, everyone, let’s go burn the post office down, RIGHT NOW” then I am encouraging imminent lawless action. It seems if I say “Come on, everyone, meet me at 2:00 p.m. tomorrow afternoon to burn down the post office” then that is protected speech because what I am encouraging is not imminent. Is there a case which answers this dilemma. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [October 18, 2016, 5:07pm UTC](https://boards.straightdope.com/t/does-trumps-rhetoric-exceed-the-bounds-of-free-spech/768846/35 "2016-10-18T17:07:34Z")
> [@UltraVires](#): > > Is there a case which answers this dilemma. Yes and no. There are lots of district court and a few appellate cases dealing with imminence. AFAIK, they come out in lots of different directions, but the weight of authority looks at whether the person is really incited in the sense that upon hearing the speech they go and commit the crime. I do not believe any of the Supreme Court authority has been sufficiently fine-grained on the question of imminence. But I’ve been meaning to brush up on this, so I’ll report back if I find anything helpful. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [October 18, 2016, 5:37pm UTC](https://boards.straightdope.com/t/does-trumps-rhetoric-exceed-the-bounds-of-free-spech/768846/36 "2016-10-18T17:37:47Z")
Here’s a nice summary from the Arizona Supreme Court in 2005: > [@Citizen Publ. Co. v. Miller](#): > > The seminal case addressing the “incitement” exception is Brandenburg, which arose out of a speech at a Ku Klux Klan rally. In that speech, Brandenburg criticized Blacks and Jews and threatened “revengeance” if the “suppression” of the white race continued. . . . In holding that Brandenburg’s speech did not fall within this limited incitement exception, the Court emphasized that “the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.” > > In order to qualify as incitement under the Brandenburg test, challenged speech must not only be aimed at producing “imminent lawless action” but must also be “likely” to do so. . . .The Supreme Court has made plain that very few statements will meet this demanding test. > > Claiborne Hardware is particularly instructive in this regard. That case arose out of the 1960s civil rights movement and involved a boycott of white merchants in Mississippi. A number of the affected merchants filed suit against the NAACP and various individuals to recover losses and to enjoin the boycott. The record showed that Charles Evers, an official of the NAACP, had stated in various speeches that the boycott organizers knew the identity of Blacks who had violated the boycott, and intended to take action against them. Evers stated that “if we catch any of you going into any of them racist stores, we’re going to break your damn neck,” and that the sheriff would be unable to protect boycott violators. The trial court awarded the merchants damages and injunctive relief. The Mississippi Supreme Court affirmed portions of the trial court’s judgment and expressly rejected the NAACP’s First Amendment defense. The Supreme Court reversed. It began from the premise that because the merchants sought to “impose liability on the basis of a public address–which predominantly contained highly charged political rhetoric lying at the core of the First Amendment–we approach this suggested basis for liability with extreme care.” The Court then considered whether Evers’ statements qualified as incitement under the Brandenburg test. **Even though isolated instances of violence occurred after Evers’ “emotionally charged rhetoric,” the Court concluded that “Evers’ speeches did not transcend the bounds of protected speech set forth in Brandenburg.” The Court noted that the acts of violence occurred long after the challenged speech and that the speech did not therefore carry with it an imminent threat of violence. . . . [Richard Parker’s note: In Evers, the violence occurred a couple weeks later] > \*\* > This is precisely what the First Amendment contemplates in matters of political concern - vigorous public discourse, even when the impetus for such discourse is an outrageous statement. _See Whitney v. California_, 274 U.S. 357, 377, 71 L. Ed. 1095, 47 S. Ct. 641 (1927) (Brandeis, J., concurring) (**“If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”\*\*). (emphasis added) ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [October 18, 2016, 6:34pm UTC](https://boards.straightdope.com/t/does-trumps-rhetoric-exceed-the-bounds-of-free-spech/768846/37 "2016-10-18T18:34:37Z")
> [@UltraVires](#): > > I have never been able to understand the difference. If I say “Come on, everyone, let’s go burn the post office down, RIGHT NOW” then I am encouraging imminent lawless action. > > It seems if I say “Come on, everyone, meet me at 2:00 p.m. tomorrow afternoon to burn down the post office” then that is protected speech because what I am encouraging is not imminent. > > Is there a case which answers this dilemma. I’m not entirely sure that your second sentence is protected speech, insofar as it could be the basis for a criminal charge of solicitation. ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [October 18, 2016, 6:37pm UTC](https://boards.straightdope.com/t/does-trumps-rhetoric-exceed-the-bounds-of-free-spech/768846/38 "2016-10-18T18:37:51Z")
Richard, Thanks, that was a fascinating read. ---
**Author:** ![billfish678](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@billfish678](https://boards.straightdope.com/u/billfish678)\ **Post date:** [October 18, 2016, 6:51pm UTC](https://boards.straightdope.com/t/does-trumps-rhetoric-exceed-the-bounds-of-free-spech/768846/39 "2016-10-18T18:51:22Z")
I’m just picturing Trump getting all hyperlegal and saying something like “if I loose the election…it was because it was rigged…might be time to riot…but NOT next Tuesday” ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [October 18, 2016, 6:59pm UTC](https://boards.straightdope.com/t/does-trumps-rhetoric-exceed-the-bounds-of-free-spech/768846/40 "2016-10-18T18:59:04Z")
> [@Moriarty](#): > > I’m not entirely sure that your second sentence is protected speech, insofar as it could be the basis for a criminal charge of solicitation. Good point. Indeed, even absent the specific and imminent time (which might be enough for _Brandenburg_), the specific identification of both the intended victim and the intended crime might bring it within the solicitation exception–which is a whole different doctrine from incitement! [Previous page](https://boards.straightdope.com/t/does-trumps-rhetoric-exceed-the-bounds-of-free-spech/768846.md?page=1) [Next page](https://boards.straightdope.com/t/does-trumps-rhetoric-exceed-the-bounds-of-free-spech/768846.md?page=3)