Federal prosecutors never actually went after Jefferson, despite partisan accusations of treason, and soon public opinion turned against the Sedition Act and its Federalist sponsors.
Debs, the head of the American Socialist Party, received 900,000 votes for President in 1912. On June 16, 1918, speaking to a Socialist gathering in Canton, Ohio, he expressed sympathy for Rose Pastor Stokes, a prominent Socialist who had been sentenced to 30 years in prison for criticizing the war. “I want to admit without reservation that if Rose Pastor Stokes is guilty of crime, so am I,” Debs said. The government took him at his word, and Debs was sentenced to ten years, a sentence cheerfully affirmed in a brusque opinion by Justice Oliver Wendell Holmes Jr.
In 1920, Debs ran for president from his cell and received 919,000 votes—more than he had as a free man. In 1921, President Warren Harding commuted his sentence.
Now to the present: here are the words that have gotten our current leader in trouble: “Get ‘em out of here!”
Trump uttered this deathless phrase from a speaker’s platform in Louisville, Kentucky, on March 1, 2016, during one of his mass rallies. Members of the crowd began shoving and hitting a group of protesters. He also said, “Don’t hurt ‘em. If I say ‘go get ‘em,’ I get in trouble with the press.”
The protesters filed suit against Trump, the Trump campaign, and the alleged assailants in federal district court in Kentucky. The lawsuit seeks money damages; among other things, they claim Trump’s speech was “incitement to riot.”
On Friday, Judge David J. Hale ruled that they had made out a genuine claim against the President.
To be clear: Judge Hale did not decide that Trump actually “incited” a riot. But he did rule that, if the protesters’ version of the facts is proved at trial, candidate Trump did just that.
It’s hornbook law that the First Amendment does not cover “incitement” to violence. But over the years, the United States Supreme Court has devised a definition of that term that makes it almost impossible to punish anyone for the offense.
The current test comes out of a 1969 case called Brandenburg v. Ohio. In 1964, an Ohio Klansman named Clarence Brandenburg held a “rally” on a private farm—attended by about 12 fellow Klansmen—and invited a camera crew from a local TV station. They donned robes, burned a cross, sang a Klan song, and then heard a largely incoherent address by Brandenburg, who said, “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.” Brandenburg was convicted of violating an Ohio state law that banned “advocat[ing] ... the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.”