> First, what Trump actually told the protestors on the 6th was to go peacefully. His plain language has been analyzed by qualified legal scholars and they conclude it does not meet the very high threshold of “fighting words”.
None of the major tests of whether speech is protected apply to the decontextualized plain language of the utterance in isolation, and the “fighting words” test is particularly non-germane here in any case, since it is a test that specifically relates to provocation of an audience hostile to one’s ideas, so you'd have to be either grossly incompetent or intensely dishonest to measure something suggested to be incitement of a friendly crowd to violence against a common enemy against it.
> Second, as we can clearly see, the attacks on the capital were planned well in advance of Trump’s speech and therefore could not have been incited by that speech in the first place.
That's...not how incitement works. It is not the case that once a a breach of the peace has been planned, encouragement immediately proximate to the planned breach to steal the nerves of either those who were in on the plan, or to fire up other susceptible persons in the area to join in, is no longer incitement. That's nonsense.
The only relevance that the prior planning has to incitement is that, if Trump knew about that planning, assessment of intent and reasonably forseeable effect of his words would have to be made in light of that knowledge.
> Third, the violent protesters had already started breaching the capital while Trump was still speaking a mile away.
Again, that's not how incitement works. The fact that a riot or other ongoing breach of the peace has begun doesn't make further immediate encouragement not incitement.
As with the last point, this is only relevant at all to the extent that, if Trump knew of it, assessment of his intent and the reasonably forseeable consequences of his action must be made with that knowledge in mind.
> The people that planned and executed the violence should be charged with crimes and face a jury of their peers.
Sure. That's not exclusive of accountability for incitement, whether by Trump or others.
> So I think there are important facts on the ground that do not support the allegation that Trump’s speech on the 6th incited a spontaneous mob.
No one made the allegation that Trump incited a spontaneous mob.
Yes, Trump’s speech clearly does not fall under “fighting words” which leaves only the even harder test (from Brandenburg) of speech that “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
> Saying things that foreseeably move some audience members to act illegally isn’t enough,” notes Eugene Volokh, a First Amendment specialist at UCLA Law School. “Speaking recklessly isn’t enough. The Court was well aware that speech supporting many movements — left, right, or otherwise — that merely moves the majority to political action may also lead a minority of the movement to rioting or worse. It deliberately created a speech-protective test that was very hard to satisfy.” [1]
If someone is already causing a pre-planned disturbance a mile away while you are speaking, it’s impossible to argue that the words were an incitement to imminent lawless action in that case. I’m not sure how you get around the fact that an imminent cause-effect relationship is a necessary component of this form of unprotected speech.
If the question is whether a political speech falls into the unprotected category of incitement to imminent lawless action, it’s highly probative to that specific charge if the lawless action was pre-planned and already occurring when you spoke.
An additional necessary element for incitement is intent. You would have to prove that Trump intended for his supporters to try to actually carry out a riot on that day, despite his calls for them to be peaceful, and how much he stood to lose (did lose) if (when) they were not.
To throw another question into the mix, if someone makes a rousing speech which rallies up a crowd, and then after the crowd takes a mile long walk they encounter an existing volatile situation like an ongoing riot, I’d be pretty surprised if the earlier speech can suddenly become illegal unprotected speech based on some true incitement to violence which happens later.
I certainly have never heard of any such case of speech that “got the ball rolling” but didn’t actually directly instruct a person or crowd to commit a specific illegal act.
> If someone is already causing a pre-planned disturbance a mile away while you are speaking, it’s impossible to argue that the words were an incitement to imminent lawless action in that case.
Its not if people hearing your words join in the disturbance. (There’s other ways it could, as well.) Again, the fact that a disturbance is under way does not make it impossible for someone to commit incitement with regard to that disturbance. Repeating the same false claim doesn’t make it any less false.
None of the major tests of whether speech is protected apply to the decontextualized plain language of the utterance in isolation, and the “fighting words” test is particularly non-germane here in any case, since it is a test that specifically relates to provocation of an audience hostile to one’s ideas, so you'd have to be either grossly incompetent or intensely dishonest to measure something suggested to be incitement of a friendly crowd to violence against a common enemy against it.
> Second, as we can clearly see, the attacks on the capital were planned well in advance of Trump’s speech and therefore could not have been incited by that speech in the first place.
That's...not how incitement works. It is not the case that once a a breach of the peace has been planned, encouragement immediately proximate to the planned breach to steal the nerves of either those who were in on the plan, or to fire up other susceptible persons in the area to join in, is no longer incitement. That's nonsense.
The only relevance that the prior planning has to incitement is that, if Trump knew about that planning, assessment of intent and reasonably forseeable effect of his words would have to be made in light of that knowledge.
> Third, the violent protesters had already started breaching the capital while Trump was still speaking a mile away.
Again, that's not how incitement works. The fact that a riot or other ongoing breach of the peace has begun doesn't make further immediate encouragement not incitement.
As with the last point, this is only relevant at all to the extent that, if Trump knew of it, assessment of his intent and the reasonably forseeable consequences of his action must be made with that knowledge in mind.
> The people that planned and executed the violence should be charged with crimes and face a jury of their peers.
Sure. That's not exclusive of accountability for incitement, whether by Trump or others.
> So I think there are important facts on the ground that do not support the allegation that Trump’s speech on the 6th incited a spontaneous mob.
No one made the allegation that Trump incited a spontaneous mob.