But they are surmountable if the government takes into account his other actions on January 6, 2021.
Alan Rozenshtein and I published a new essay in the Atlantic here.
Here’s our lede: “We believe that the government can prosecute Trump for his speech, but it must proceed very carefully to avoid risking the criminalization of legitimate political expression. The way to do this is for the evidentiary bar to be set appropriately high: Specifically, in cases where a speaker plausibly but ambiguously advocates lawlessness, the government should be required to show that the defendant took additional “overt acts,” beyond making the speech itself, that furthered violence. (We explain this balanced approach for prosecuting political speech—whether for incitement, obstruction, fraud, or insurrection—in greater detail in a forthcoming law-journal article.)”
Our main argument: “When it comes to legal liability for political speech, ties go to the runner—meaning the First Amendment should prevail in close calls, especially in criminal trials. The Brandenburg test is an example of what are called “prophylactic” rules in constitutional law: rules that add a high standard in order to reduce the risk of violating constitutional rights. In particular, there is a serious risk of hindsight bias in any attempt to decide whether a certain speech caused, or would have caused, violence or lawlessness. And when legal rules set a bar too low and with too much subjectivity, they risk opening a door to future prosecutions tainted by partisan bias.
But this is not a tie, because a prosecution need not, and should not, rest solely on Trump’s speech. The January 6 Committee already did much of the work last summer, producing testimony from Cassidy Hutchinson and others showing that Trump took additional concrete acts that he knew would increase the risk of violence.”
See our forthcoming article here: