First, some things we all agree on.

Freedom of speech is good, and people should have lots of it. Freedom of speech includes odious speech, annoying speech, dangerous speech, and even violent speech—that is speech that advocates violence. See Watts v. United States; Brandenburg v. Ohio. You can buy the Anarchist Cookbook on Amazon.   

And we agree that the freedom of speech is not unlimited. In addition to certain sounds that come out of your mouth that don’t trigger the concept of free speech at all—“you’re fired”; “we’ve got a deal”; “the septic system is doing great”; “I hereby pronounce you married”; “I swear to tell the truth, the whole truth, and nothing but the truth”—some categories of “speech” are unprotected: among them libel, threats, and speech that incites imminent violent action.

In a lawsuit currently pending in Kentucky, the Plaintiffs allege that Donald Trump incited imminent violence at a rally when he yelled—barked, really—“GET ‘EM OUT” at a crowd while some of its members were forcibly shoving protesters out of the rally. (You can hear what happened and listen to us yack about it here.)  

The law on this kind of thing is old, well-established, and simple: “[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 [1] directed to inciting or producing [2] imminent lawless action and [3] is likely to incite or produce such action.” Brandenberg. And, at this stage of the case (a motion to dismiss the complaint), everything the Plaintiffs allege is accepted as true, in order to see whether those allegations—if proven at trial—would state a claim upon which relief may be granted. So the only question, for now, is whether the facts alleged plausibly show that Trump (1) intended to incite (2) imminent lawless action and (3) that his speech was likely to produce such action.

Is it plausible that Trump intended his barks to result in violence? Of course. Violence includes illegal pushing, grabbing, and removing. Maybe Trump didn’t intend to incite a murder or a beating; but he almost surely intended the natural consequences of his speech: that the people who were surrounding the protesters would shove them out of the rally. And you can’t do that.

Is it plausible that the violence Trump was intending to incite was imminent? Of course. The people were standing right in front of him, shoving as he spoke. The imminence requirement raises all sorts of tricky theoretical problems—what about time-delayed bombs?—but none are presented here.

And is it plausible that Trump’s speech was likely to incite imminent violence? Of course. A jury could conclude that he was standing in front of an enraptured crowd that included livid white supremacists and that he barked at them to get a black woman out of there. What do you think would happen?

But my dear buddy Jason is still worried sick, it seems. Jason is worried that “punishing a speaker for remarks made at an organized rally, with professional security, about issues of public importance will have grave repercussions that ultimately outweigh whatever justice might be had for the plaintiffs in the Kentucky case by holding Trump liable.”

Uh, no. Why does it matter that the rally is “organized”? One can incite imminent violence at an organized rally just as one can at a spontaneous one. The professional security matters only if it makes it unlikely that Trump’s speech would result in illegal violence. There’s no plausible case for that, let alone a case that renders the alternative implausible. (If anything, Jason’s point gets it backward: the presence of professional security meant that Trump’s barking command to remove the protesters—aimed straight at the crowd of angry supporters—was unnecessary unless it was meant to prompt his supporters to take action themselves.)

And “issues of public importance?” At other points in the rally, Trump was surely talking about those. But Trump barking “GET ‘EM OUT” isn’t the sort of thing you’d hear at the Whig-Cliosophic society.

Jason worries that if we let the suit against Trump go forward we should expect suits against Black Lives Matter protesters, Women’s March organizers, and Bill Nye the Science Guy. What’s good for the goose and all. But those folks don’t incite imminent lawless violence. (They don’t advocate violence either, although they have the right to.) And if they do incite imminent lawless violence—“let’s kick the shit out of that climate denier,” and so on—they should be held liable, unless we think that incitement is protected speech. And we don’t.

So I think Jason is relying on an impermissible consideration: whether, in a free-standing, gestalty sense, it’s a good idea for Trump to be liable here. But that ain’t how the rule of law works, or at least not how it should work. Where there’s a legal rule forbidding incitement, you pay damages when you incite violence and someone gets hurt.

I’m worried—like any decent person should be—that the President of the United States plausibly incited racist violence. But that worry doesn’t lead me to conclude that we must change the rules so that he didn’t.

It’s tempting to argue that Trump isn’t liable for his actions because doing so gives us credibility when we argue that he is. Surely some people would read this piece and think “oh, Charlie’s just a lefty who hates Trump and will always side against him, even at the expense of his precious First Amendment.” So it would be nice if I could say “no, see, I’m against Trump only when the law is, and the law isn’t here.” No dice, though. Trump incited imminent lawless action. He’s should pay the costs of doing so. 

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