Donald Trump Has Incited Violence. When Will He Be Arrested?
In the United States, we have freedom of speech. People can say what they want to say, and not be punished for what they say.
However, in the United States, we also have laws against organizing criminal activity. So, if the leader of an organization is talking to its members, and that leader tells the organization’s members to commit violent crimes, that’s a crime.
Is that a crime that Donald Trump is guilty of?
Trump has stood before his supporters and instructed them to violently attack anti-Trump protesters, telling them to, “Knock the crap out of them, would you? Seriously. Okay? Just knock the hell, I promise you, I will pay for the legal fees. I promise. I promise.”
“Seriously,” Trump says.
Fine. Let’s treat this seriously.
Should Donald Trump be arrested for the violence he has encouraged his supporters to engage in?
Violence has certainly occurred. Trump supporters, on several occasions, have brutally attacked peaceful protesters.
Tonight, on the streets of Chicago, there have been huge brawls, with gangs of angry Trump supporters getting into fistfights with anti-Trump supporters.
However, in the United States, we have free speech, and Donald Trump’s incitement of violence has remained within the zone of legally protected free speech – if only barely.
The Supreme Court has used a ruling known as Brandenburg v. Ohio as an indication that even when leaders encourage their followers to engage in acts of criminal violence, free speech protects them. This interpretation of Brandenburg is the prevailing legal opinion, but it rests upon a razor-thin line of reasoning.
The Brandenburgmajority opinion declared that “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”. From this opinion, a legal principle known as the Brandenburg Test has been crafted, dictating that three elements need to be present for criminal incitement of violence to overcome First Amendment free speech protections.
1. There needs to be the intent to incite violence
2. There needs to be an imminent opportunity for violent attack after the incitement is given
3. The incitement needs to be likely to cause violent attack
Donald Trump clearly fails items number 2 and 3 in the Brandenburg Test.
The only thing that is preventing Donald Trump’s arrest and prosecution for inciting mob violence is that he can claim that he never intends for any attacks to actually take place. First, Trump instructs huge crowds of his fans to attack protesters, and then later, Trump releases statements that he does not condone violence among his supporters. It’s just barely enough, given his position as a rich and powerful presidential candidate, to provide him with legal protection.
Tonight, it seems like only a matter of time before a protester at a Trump rally is left with something more serious than a bruise or a bloody cut. Trump supporters have already screamed encouragement to attackers to engage in extreme violence, yelling, “Light the motherfucker on fire!” John McGraw of Linden, North Carolina, the man who was filmed rushing up to an African-American at a Trump rally and punching him, without provocation, has threatened, “Next time, we might have to kill”.
The situation is becoming extremely serious, and Donald Trump needs to be exceptionally careful about the threats he makes while on stage. If an anti-Trump protester is killed, Trump will have blood, not on his hands, but on his tongue.