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Capitol Hill: call that a coup? : Comments
By Graham Young, published 10/2/2021What the Democrats are asking us to believe is that a man who can make billions in his lifetime doing intricate deals can't properly organise a coup.
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Trying to compare the actions of a murderous cult leader to a speech by Trump is simply farcical. To quote:
Inciting to Riot, Violence, or Insurrection
Criminal incitement refers to conduct, words, or other means that urge or naturally lead others to riot, violence, or insurrection.
But what about First Amendment protections? How does the law determine when speech crosses the line from protected advocacy to incitement of violence?
The First Amendment: Brandenburg v. Ohio
Court decisions stress that democracy cannot stand if speech or conduct disagreeing with the government is criminalized—even when that speech advocates unpopular beliefs, condones racism or suggests the use of force.
In a seminal case involving a Ku Klux Klan leader, the U.S. Supreme Court found that a KKK leader’s anti-black, anti-Semitic, and anti-government comments were protected speech, even those comments that suggested taking future “vengeance” (sic) on the federal government.
To cross the legal threshold from protected to unprotected speech, the Supreme Court held the speaker must intend to incite or produce imminent lawless action, and the speaker’s words or conduct must be likely to produce such action. These requirements are known as the Brandenburg test. (Brandenburg v. Ohio, 395 U.S. 444 (1969).)
Applying the Brandenburg Test
Cases applying the Brandenburg test stress just how high the bar is set before the government can criminalize someone for advocating dissent or violence.
First, incitement to violence requires proof that the defendant intended to incite violence or riot (whether or not it actually occurs). Careless conduct or “emotionally charged rhetoric” does not meet this standard. Second, the defendant must create a sort of roadmap for immediate harm—using general or vague references to some future act doesn’t qualify as imminent lawless action. Finally, the defendant’s words must be likely to persuade, provoke, or urge a crowd to violence. Profanity or offensive messaging alone isn’t enough; the messaging must appeal to actions that lead to imminent violence. (NAACP v. Claiborne Hardware, Co., 458 U.S. 886 (1982); Hess v. Indiana, 414 U.S. 105 (1973).)