Here is the most positive thing that can be said about the Republican presidential nominee in August of 2016: He probably didn’t commit a federal felony yesterday.
As surely everyone knows, Trump told an audience in Wilmington, North Carolina, that Democratic nominee Hillary Clinton “wants to abolish—essentially abolish the Second Amendment … If she gets to pick her judges, nothing you can do, folks. Although the Second Amendment people, maybe there is, I don’t know.”
In context—watch the video here—it’s clear that this is a coy reference to the possibility of gun violence against either Clinton or potential judicial nominees. Trump and his campaign, in their characteristic style, are attempting to dodge any accountability, while letting the suggestion of violence linger in the air. Their best defense is a feeble one: Trump co-chair Sam Clovis cheerfully told CNN that “When Mr. Trump speaks, it's not as artful as a lot of people might think." Not a killer, just a tongue-tied idiot.
That plough won’t scour. Trump’s is the most direct, consequential call for political violence I can remember since the 1960s. But has he violated the law? That question popped up insistently on Twitter last night as the news of Trump’s speech broke. The answer is: almost certainly not.
Let’s start with the easiest question. Was Trump “inciting” violence against Clinton? In any ordinary-language of the term, the answer is probably yes. He was signaling to the unhinged fringe—a group he has courted with birtherism, Clinton conspiracy theories, libels against American Muslims, and a lot of coy eyelash-batting in the direction of David Duke and other white supremacists. The signal was (to be as generous as possible), “I share your anger and also wonder whether it will be someday be necessary for you to kill your enemies.”
Does that contribute to the possibility of violence? Yes. Does it intentionally encourage those who believe in killing for political aims? Yes.
Does it violate laws against “incitement”? No.
The reason is that, under American law, “incitement” is a narrow term. Until the 1960s, most states in the U.S. had “criminal syndicalism” laws that made it a crime to “advocate”—or even, in some states, merely associate with groups that advocated—political or economic change by violence or revolution. The law was handy for crushing labor groups like the Industrial Workers of the World; the U.S. government used its federal analogue, the Smith Act, to destroy the leadership of the Communist Party.
In 1969, the Supreme Court voided these laws in a case called Brandenburg v. Ohio. The defendant had been convicted of making a speech to a KKK “rally” (attended by 12 Klansmen and a TV crew on a private farm) in which he announced, “We're not a revengent organization, but if our president, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance taken.” The Court held that “mere advocacy”—even of violence—cannot be made criminal “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
Whatever Trump’s intent in Wilmington, the “imminence” requirement is the bar to incitement charges against Trump. What the Court meant is that the First Amendment requires a showing that the violence was literally about to occur at that very moment. “Kill that person over there right now!” is the template.
By that standard, did Trump “incite” violence against Clinton? No.
What about “fighting words”? That’s a term that gets thrown about but that constitutionally is virtually nonexistent. It means, in essence, speech that proposes an immediate fistfight and is thus not protected by the First Amendment. (A stranger once came up to me on the street and said, “I’m going to knock the crap out of you.” Those are “fighting words”; what Trump said was not.)
More difficult to assess is whether the words are a threat. Federal law (18 U.S.C.A. § 875) makes it an offense to transmit “in interstate or foreign commerce any communication containing … any threat to injure the person of another”; beyond that, a specific statute, 18 U.S.C. § 879, says that anyone who “knowingly and willfully threatens to kill, kidnap, or inflict bodily harm upon ... a major candidate for the office of President” is guilty of a felony, punishable by up to five years in prison.
To violate the statutes, however, courts have held that speech must constitute a “true threat.” That term is confusing. It does not require a “threat” to be “true” in the sense that the speaker intends to carry it out and is able to.
A threat must be “true” only in a linguistic sense—that is, it must communicate—and the speaker must at some level understand it to communicate—an actual intention to commit harm to the person threatened. Consider the words of Justice Samuel Alito’s concurrence in a recent “threat” case, Elonis v. United States: “True threats inflict great harm and have little if any social value. A threat may cause serious emotional stress for the person threatened and those who care about that person, and a threat may lead to a violent confrontation.” An example is a bomb threat called in by kids who want a day off: There’s no bomb, but great harm is done.
A “true threat” doesn’t have to have the form, “I will harm you.” In the late 1990s, an anti-abortion group posted a “Wanted” website containing a list of abortion providers—with the names of murder victims among them “greyed out.” The site didn’t make clear who, if anyone, might kill the surviving doctors; but in context, its message of terror was clear. The Ninth Circuit affirmed that this speech could constitute a threat. In 1985, a disturbed person warned the Secret Service that a shadowy person supposedly named “Mr. Image” was planning to kill Ronald Reagan. There was no plot; the letter writer meant not himself but an imaginary conspiracy by the National Council of Churches. Nonetheless, agents arrested the man. Charges were later dismissed, but the Supreme Court upheld the arrest as reasonable.
The Court has made clear, however, that a “true threat”—especially in the political context—doesn’t arise from sloppy speech or rhetorical excess. In 1966, an 18-year-old African American man named Robert Watts attended a civil-rights demonstration at which he told a small group, “I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.” The Supreme Court reversed his conviction, saying that
The language of the political arena, like the language used in labor disputes, is often vituperative, abusive, and inexact. We agree with petitioner that his only offense here was ‘a kind of very crude offensive method of stating a political opposition to the President.’ Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise.
Under the Watts standard, were Trump’s words “vituperative, abusive, and inexact”? Probably. The difference, of course, is that Watts said that he himself would go shoot the president as soon as he got an Army rifle. It’s hard to take that possibility seriously (“Sir! Recruit Watts requests permission to fall out and proceed to seat of government to shoot Commander in Chief, sir!”) Trump didn’t limit his language to himself—he mentioned action by “the Second Amendment people.”
Could that have crossed the line?
Legally, that case would be hard to make. First Amendment law across the board—from the rules of defamation to advocacy of violent revolution—protects speech about politics jealously from government regulation. In New York Times v. Sullivan, the Court wrote “debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” A prudent federal judge would, however reluctantly, strike any indictment against Trump under federal threat statutes.
Morally, however, Trump’s is as vile a public statement as I have read since a politician in my Virginia hometown advocated “euthanasia” against Governor Linwood Holton for his support of school desegregation.
The First Amendment protects much vileness, however. Freedom of speech may be a moral good; but speech itself may be free but not be good. If history shows us anything, it shows us that speech can do dreadful harm to individuals and to nations. The decision to tolerate that harm is, as Oliver Wendell Holmes Jr. once wrote, “an experiment, as all life is an experiment.”
To date, on balance, the experiment has served us well. Trump may not be a criminal, but as of Tuesday, he has begun a mortal assault against the utility, indeed, the very concept, of free speech.
And there are three more months to go.