The Limits of Free Speech

Police Consider Charging Trump With Inciting a Riot Over Violence at North Carolina Rally, Sarah K. Burris, Raw Story, March 14, 2016:

The Cumberland County Sheriff’s office is considering filing charges of inciting a riot against GOP frontrunner Donald Trump for the Fayetteville, North Carolina rally according to anNBC reporter and local media sources. The rally was the site where Trump supporter John Franklin McGraw was arrested for sucker-punching a black protester and threatening to kill him.

“We are looking at the totality of these circumstances, including any additional charges against Mr. McGraw, including the potential of whether there was conduct on the part of Mr. Trump or the Trump campaign which rose to the level of inciting a riot,” Sheriff’s Office lawyer Ronnie Mitchell told The Fayetteville Observer.

At the rally, Trump asked the audience “Can’t we have a little more action than this?” when protesters were causing a disturbance. “See, in the good old days this didn’t use to happen, because they used to treat them very rough,” he said. “We’ve become very weak.”

Brandenburg v. Ohio, 395 U.S. 444, 447 (1969):

[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

[Emphasis added.]

Three elements are required for “incitement” to lose First Amendment protection under Brandenburg:

  1. Intent to incite violence or other lawless action;
  2. Imminence of the violence or lawless action suggested; and
  3. Likelihood that violence or lawless action will result.

Does this meet that standard? I guess we’ll see, maybe.

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