DANIEL VAUGHAN: No, the president’s tweets are not incitement

April 15, 2019

We’re in the midst of yet another news cycle of leftists, all with roughly the same argument, proclaiming that the president’s tweets criticizing a House representative are inciting violence. But incitement is a specific legal term with a narrow legal meaning, and the left tossing it around for everything shows that they’re more interested in censorship than they are free speech.

The left wants a culture similar to Europe, where people get thrown in prison for social media posts — and those arrests are rising every year.

We get the legal term “incitement” from the 1969 Supreme Court case Brandenburg v. Ohio. The then-Earl Warren-headed Supreme Court faced a situation wherein the state of Ohio had arrested a Ku Klux Klan leader for violating Ohio’s criminal syndicalism law.

The law criminalized the advocation of “crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform,” as well as the assembly of “any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.”

The Klan leader was arrested for a speech he gave at a Klan event where various weapons were present. He said in part:

This is an organizers’ meeting. We have had quite a few members here today which are — we have hundreds, hundreds of members throughout the State of Ohio. I can quote from a newspaper clipping from the Columbus, Ohio, Dispatch, five weeks ago Sunday morning. The Klan has more members in the State of Ohio than does any other organization. We’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.

The Supreme Court was left with one question: “Did Ohio’s criminal syndicalism law, prohibiting public speech that advocates various illegal activities, violate Brandenburg’s right to free speech as protected by the First and Fourteenth Amendments?”

The Court held 9-1 that Ohio had violated Brandenburg’s free speech rights under their criminal syndicalism law. The justices argued that the Constitutional protections for speech found in the First Amendment gave full protections for such speech except in a situation “where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

Nothing in Brandenburg’s speech, the Court found, was likely to “incite,” or “produce,” “imminent lawless action.”

That brings us to President Trump’s tweet, which included a video attacking Rep. Ilhan Omar’s idiotic point dismissing al-Qaida’s role in the 9/11 terrorist attacks.

Of course, nothing in Trump’s mocking tweet comes close to producing or inciting imminent lawless action.

Politicians attacking each other is not incitement, and no rational court would ever hold it as such.

The point the left is missing here is that if attacking other politicians was incitement, then there’s more proof Democrats are culpable than Republicans.

Democrats have spent two years arguing that Trump is an illegitimate president who colluded with Russia — a criminal whose supporters are accomplices in those illegal activities.

One lunatic Democrat took those words to heart and acted on those beliefs, shooting up a congressional baseball practice in 2017.

For a party convinced that the inflammatory speech that triggers them is harmful and should be banned on college campuses, Democrats really are quite comfortable throwing that same rhetoric at their opponents. And that’s the real tell: they don’t believe this is inciting or promoting imminent unlawful action — they want to censor anyone who says anything against what they think.

We know this is the situation because this new pro-censorship stance by Democrats is coming from their college grassroots. Studies by Johnathan Haidt and other researchers have shown that “American college students today are, on average, more willing than students of recent generations to restrict speech and speakers on campus, in pursuit of other moral and political goals, particularly inclusion.”

We aren’t witnessing some fake moral panic, as some on the left assert with regard to censorship — they’re using calls for censorship in their attacks on the president. Part of this is political pandering to their base. But we also know there’s truth in this pandering, because the left is openly advocating for the same censorship policies their brethren in Europe have adopted to defeat free speech.

We’re always one generation away from losing our liberty and freedom, and the continuing advocacy on the left for censorship shows us that one side of the debate in America is uncoupling itself from one of the core rights in American law.

That decoupling trend is more dangerous than any tweet the President of the United States could ever send, and all Americans should resist this pursuit of censorship.


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Daniel Vaughan

Daniel Vaughan is a columnist for the Conservative Institute and lawyer in Nashville, Tennessee. He has degrees from Middle Tennessee State University and Regent University School of Law. His work can be found on the Conservative Institute's website, or you can receive his columns and free weekly newsletter at The Beltway Outsiders. Connect with him on Twitter at @dvaughanCI.