When Trump sent his irate followers to the Capitol on a doomed mission to stop Biden from taking office by expressing their displeasure at that prospect, violence was predictable. But that is not enough to satisfy the Brandenburg standard.
“Saying things that foreseeably move some audience members to act illegally isn’t enough,” notes Eugene Volokh, a First Amendment specialist at UCLA School of Law. “Speaking recklessly isn’t enough. The Court was well aware that speech supporting many movements—left, right, or otherwise—that merely moves the majority to political action may also lead a minority of the movement to rioting or worse. It deliberately created a speech-protective test that was very hard to satisfy.”
There are sound reasons for that. If Trump’s speech was a crime, so is similarly fiery rhetoric at other protests marked by violence.
The risk is not merely theoretical. Protesters have faced lawsuits after police officers were injured or killed during Black Lives Matter demonstrations, based on the claim that their criticism of law enforcement inspired those assaults.