Why the First Amendment Doesn’t Protect Trump’s Jan. 6 Speech
The Lawfare Podcast
The Lawfare Institute
4.7 • 6.4K Ratings
🗓️ 28 October 2022
⏱️ 45 minutes
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Summary
There's been a lot of discussion about whether Donald Trump should be indicted. Lately, that discussion has focused on the documents the FBI seized from Mar-a-lago or the Jan. 6 committee's revelations about his efforts to overturn the 2020 election. But what about his speech on the ellipse on Jan. 6 when he told a crowd of thousands to “fight like hell,” and they went on to attack the Capitol? Isn't that incitement?
Lawfare executive editor Natalie Orpett sat down with Alan Rozenshtein, a senior editor at Lawfare and an associate professor at the University of Minnesota Law School, and Jed Shugerman, a professor at Fordham Law School. Alan and Jed explained the complicated First Amendment jurisprudence protecting political speech, even when it leads to violence, and why they believe that given everything we know now, Trump may in fact be criminally liable. They also reference Alan and Jed’s law review article in Constitutional Commentary, “January 6, Ambiguously Inciting Speech, and the Overt-Acts Solution” (forthcoming 2023).
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Transcript
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| 1:08.0 | Trump was trying to bring them closer to the crowd |
| 1:12.0 | and be more fired up and march more directly as part of that crowd, |
| 1:16.0 | which all increased the risk of violence, whether or not he intended to. |
| 1:20.0 | And I'll agree with Alan here. |
| 1:22.0 | I think there is evidence of intent as well. |
| 1:26.0 | If this is the awareness that you have, it changes the context. |
| 1:30.0 | It makes the speech even more imminent. |
| 1:34.0 | Once you know that this is the language you're using in a crowd of heavily armed people |
| 1:38.0 | that you have made concretely more armed, including the people who would bring heavy arms. |
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