# 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:** 14\ **Page:** 3
**Author:** ![Ludovic](https://avatars.discourse-cdn.com/v4/letter/l/7ab992/32.png) [@Ludovic](https://boards.straightdope.com/u/Ludovic)\ **Post date:** [October 18, 2016, 7:33pm UTC](https://boards.straightdope.com/t/does-trumps-rhetoric-exceed-the-bounds-of-free-spech/768846/41 "2016-10-18T19:33:30Z")
> [@billfish678](#): > > 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” HAH! I said only do that if I _loose_ the election, and, being an immaterial object, I cannot loose it as I never have gripped it in the first place! ---
**Author:** ![Euphonious\_Polemic](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/euphonious_polemic/32/3002_2.png) [@Euphonious\_Polemic](https://boards.straightdope.com/u/Euphonious_Polemic)\ **Post date:** [October 18, 2016, 7:37pm UTC](https://boards.straightdope.com/t/does-trumps-rhetoric-exceed-the-bounds-of-free-spech/768846/42 "2016-10-18T19:37:44Z")
If a group of Trump supporters goes to polls in “certain areas” and intimidates “those people”, which results in someone getting killed, it is impossible that Trump will be held legally liable for their actions. Even though Trump exhorted people to actually do this (minus the violence) Even though a reasonable person could have seen that exhorting your followers to do this would likely result in negative repercussions. However… Even though Trump would be legally off the hook, public perception of him would plummet. Even some of his core supporters would draw the line. ---
**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, 8:10pm UTC](https://boards.straightdope.com/t/does-trumps-rhetoric-exceed-the-bounds-of-free-spech/768846/43 "2016-10-18T20:10:49Z")
> [@Euphonious\_Polemic](#): > > However… Even though Trump would be legally off the hook, public perception of him would plummet. Even some of his core supporters would draw the line. That’s because they’re OK with sexual assault against women, but they won’t stand for intimidation of voters. ---
**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, 9:02pm UTC](https://boards.straightdope.com/t/does-trumps-rhetoric-exceed-the-bounds-of-free-spech/768846/44 "2016-10-18T21:02:37Z")
> [@Euphonious\_Polemic](#): > > Even though a reasonable person could have seen that exhorting your followers to do this would likely result in negative repercussions. [Barack Obama once urged his supporters: “I want you to argue with them and get in their face”](https://www.youtube.com/watch?v=ZCMDur9CDZ4) It was perhaps an ugly phrasing, and “a reasonable person could have seen that exhorting your followers to do this would likely result in negative repercussions”, but even if it had resulted in someone, somewhere getting killed in a fight, I would oppose him being criminally, or even civilly, liable for it, and I wouldn’t hold Trump to a different standard. ---
**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, 9:35pm UTC](https://boards.straightdope.com/t/does-trumps-rhetoric-exceed-the-bounds-of-free-spech/768846/45 "2016-10-18T21:35:01Z")
BTW, since we’re talking about cameras and police shootings, we got a win today: [that murderous sonofabitch Patrick Feaster got convicted of manslaughter](https://photographyisnotacrime.com/2016/10/18/california-cop-patrick-feaster-guilty-of-manslaughter-in-shooting-death-of-dui-suspect/) ---
**Author:** ![octopus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/octopus/32/3716_2.png) [@octopus](https://boards.straightdope.com/u/octopus)\ **Post date:** [October 18, 2016, 10:10pm UTC](https://boards.straightdope.com/t/does-trumps-rhetoric-exceed-the-bounds-of-free-spech/768846/46 "2016-10-18T22:10:49Z")
> [@Running\_with\_Scissors](#): > > 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](http://www.cbsnews.com/news/donald-trump-doubles-down-on-rigged-election-claim/) 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? No. ---
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [October 18, 2016, 10:14pm UTC](https://boards.straightdope.com/t/does-trumps-rhetoric-exceed-the-bounds-of-free-spech/768846/47 "2016-10-18T22:14:41Z")
Imprisoning people for speech (other than “fire” and the like) makes them into martyrs and _helps their cause_. It’s unconstitutional, but it’s also _stupid_ as a method to oppose distasteful ideas. ---
**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 18, 2016, 10:24pm UTC](https://boards.straightdope.com/t/does-trumps-rhetoric-exceed-the-bounds-of-free-spech/768846/48 "2016-10-18T22:24:47Z")
Is what Trump has been saying so different from Fox News rhetoric for the past 15 years? ---
**Author:** ![tomndebb](https://avatars.discourse-cdn.com/v4/letter/t/b9e5f3/32.png) [@tomndebb](https://boards.straightdope.com/u/tomndebb)\ **Post date:** [October 18, 2016, 10:39pm UTC](https://boards.straightdope.com/t/does-trumps-rhetoric-exceed-the-bounds-of-free-spech/768846/49 "2016-10-18T22:39:04Z")
> [@septimus](#): > > 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! Knock it off. You’re standing on the line, leaning directly toward toward personal attack, and this contributes nothing to the discussion. [/Moderating] ---
**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, 11:09pm UTC](https://boards.straightdope.com/t/does-trumps-rhetoric-exceed-the-bounds-of-free-spech/768846/50 "2016-10-18T23:09:43Z")
> [@Richard\_Parker](#): > > 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. Thank you for the cite. I still think the standard is pretty vague. Does the message have to be political in nature? What if Trump said, “Someone needs to kill all of the lying bitches who are saying I sexually abused them?” Is it a defense if Trump clarifies his remarks to say that he didn’t mean go out right now and do it? Does the “imminence” test apply to something that does not particularly express a political idea? What about a pure threat that is qualified to take away the imminence? If I get in someone’s face and scream, “I am going to kill you!” that is an illegal threat. What if I scream, “I am going to kill you!..next week”? I can’t imagine that would make it any better. Isn’t there some idea that needs to be expressed apart from the threat of violence? ETA: Can I be equally as “vigorous” talking about a sports team or my favorite flavor of ice cream or must the speech be “political”? ---
**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, 11:31pm UTC](https://boards.straightdope.com/t/does-trumps-rhetoric-exceed-the-bounds-of-free-spech/768846/51 "2016-10-18T23:31:53Z")
> [@UltraVires](#): > > Thank you for the cite. I still think the standard is pretty vague. Does the message have to be political in nature? What if Trump said, “Someone needs to kill all of the lying bitches who are saying I sexually abused them?” Is it a defense if Trump clarifies his remarks to say that he didn’t mean go out right now and do it? Does the “imminence” test apply to something that does not particularly express a political idea? > > What about a pure threat that is qualified to take away the imminence? If I get in someone’s face and scream, “I am going to kill you!” that is an illegal threat. What if I scream, “I am going to kill you!..next week”? I can’t imagine that would make it any better. > > Isn’t there some idea that needs to be expressed apart from the threat of violence? > > ETA: Can I be equally as “vigorous” talking about a sports team or my favorite flavor of ice cream or must the speech be “political”? I think we started out talking about inciting a riot, which, in order to be a crime has a pretty clear “imminence” test that it has to pass. That’s quite a bit different from making direct personal threats, “I’m going to kill you next week”, which isn’t trying to incite others to riot, but threatening / harassing / intimidating another individual. It doesn’t have to be said in front of or to a crowd that might be incited to do something. It could be two individuals having a hushed conversation in a private room. [If it’s a threat, that’s a crime (at least in my state](http://www.howarddefense.com/utah_criminal_defense_practice_areas/utah_threat_of_violence_defense_lawyer.html), and I assume in most states). ---
**Author:** ![enipla](https://avatars.discourse-cdn.com/v4/letter/e/54ee81/32.png) [@enipla](https://boards.straightdope.com/u/enipla)\ **Post date:** [October 18, 2016, 11:51pm UTC](https://boards.straightdope.com/t/does-trumps-rhetoric-exceed-the-bounds-of-free-spech/768846/52 "2016-10-18T23:51:56Z")
Trump may or may not know that he is going to lose. He hopes IMHO, that there will be riots if he does lose as a way to stroke his ego. ---
**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 19, 2016, 1:55am UTC](https://boards.straightdope.com/t/does-trumps-rhetoric-exceed-the-bounds-of-free-spech/768846/53 "2016-10-19T01:55:36Z")
From \*\*UltraVires \*\*(re-ordered a little): [Here’s](http://cornelllawreview.org/files/2016/05/Volokhfinal-1.pdf)a great law review article that covers a lot of this ground more expertly than I could. But I’ll give you my answers as I understand the doctrine. \*\*Does the message have to be political in nature? \*\* AFAIK, this hasn’t been decided because in all cases the message has been political–though the term of art is a “public concern.” In some areas of First Amendment protection, like government employee speech or defamation restrictions, the courts have required that the matter be of public concern. In other areas, they haven’t (yet). **Does the “imminence” test apply to something that does not particularly express a political idea? Isn’t there some idea that needs to be expressed apart from the threat of violence? Can I be equally as “vigorous” talking about a sports team or my favorite flavor of ice cream or must the speech be “political”?** See above. Though it should be noted that imminence is an element of _Brandenburg_, which is a test for the incitement exception. There are other free speech exceptions, including true threats and solicitation, that are subject to different tests. “Matter of public concern” has not typically been viewed as an element necessary to make a threatening statement protected by the First Amendment if it does not otherwise qualify for the threat exception. \*\*What if Trump said, “Someone needs to kill all of the lying bitches who are saying I sexually abused them?” \*\* You could analyze this as solicitation, threat, or incitement, and each analysis would be slightly different. Because it isn’t directed at the women, and because it contains no real specifics or times, prosecutors would probably approach it as a solicitation charge. \*\*Is it a defense if Trump clarifies his remarks to say that he didn’t mean go out right now and do it? \*\* In solicitation, it is a defense that the solicitor withdrew the solicitation. If this is an incitement hypo, then it would depend on when he clarified his remarks. If it’s in the same speech to the same audience, then it might be relevant to imminence. \*\*What about a pure threat that is qualified to take away the imminence? If I get in someone’s face and scream, “I am going to kill you!” that is an illegal threat. What if I scream, “I am going to kill you!..next week”? I can’t imagine that would make it any better. \*\* The threat exception is doctrinally separate from the incitement exception. There is a circuit split over whether imminence is a factor in true threats analysis. I know there was a threat case in SCOTUS last term, but I can’t recall if it addressed that issue. ---
**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 19, 2016, 2:19am UTC](https://boards.straightdope.com/t/does-trumps-rhetoric-exceed-the-bounds-of-free-spech/768846/54 "2016-10-19T02:19:18Z")
**Richard Parker** , your posts in this thread are really interesting and helpful. Thank you! [Previous page](https://boards.straightdope.com/t/does-trumps-rhetoric-exceed-the-bounds-of-free-spech/768846.md?page=2)