Inciting a mob to invade the Capitol is not free speech

On Jan 6th I knew that incitement was going to be a key issue. I found Lee Rowland, an ACLU lawyer who made a video about incitement and asked what she thought. She said she thought Trump had crossed the line.

Last week I watched Chris Hayes’ experts praise the Impeachment brief by the house managers, then attack Trump’s. (A typo in the first line! 14 pages of Incoherence!) But attacking Trump’s lawyers’ incompetence isn’t enough. We need to make the case to regular people who don’t understand what incitement is and what it takes to fulfill a legal definition.

On the Feb 4th episode of Stay Tuned with Preet Bharara, he brought up the argument that Trump’s lawyers will make.

-Trump’s lawyers} will make some of these points beyond the procedural points, Donald Trump did not say, “Invade the Capitol.” Donald Trump did not say, “Break windows.” Donald Trump did not say, “Engage in violence.” Donald Trump did not say, “Insurrection.” He did not say, “Riot.” He didn’t say any of those things, does that make a difference? And if the impeachment lawyers on behalf of Donald Trump make that argument in full or form than I just made it, what’s the rebuttal to that?

At 36:49 Adam Schiff gives his thoughtful and articulate legal response. But Dan Goldman’s reply 40:40 is the one that hit home for me.

[Trump] talks like a mob boss. He is not going to use those words you referenced like, “Go execute an insurrection, go riot, go storm the Capitol.” He never would actually say those words, just like a mob boss would not say, “Go kill that person.” The mob boss would say, “Can you please take care of this?”

When he says, “Go fight.” Or, “If Mike Pence doesn’t do the right thing, bad things will happen.” That’s violent talk, everyone understands that. And if you have any question as to whether they understood it or not, just wait until we see all of the Parler videos from social media of the people who attended his rally, who were going to the Capitol and saying that the president told us to storm the Capitol. They understood what he was trying to say.

Trial 2 for Individual 1 (with Daniel Goldman and Adam Schiff)

I found this article two days later, it needs to be read and retweeted.

Yes, what President Trump did was incitement

 Opinion by Len Niehoff

Law professor Len Niehoff laid out the incitement criteria in the Detroit Free Press:

  • The speech must be directed toward producing action.
  • It must be likely to result in such action.
  • The action must be unlawful
  • And the action advocated for must be imminent.

Liehoff thinks Trump’s word and actions on Jan 6 meet these criteria.
I wrote Niehoff last week explaining why I want to see him on my favorite MSNBC shows.

I’ve found the MSM often goes out of their way to defend speech that falls in the category of threatening speech–and in this case speech that fits the criteria of incitement.

Please explain why incitement IS possible for Trump and explain how his words & actions up to and during the Jan 6th riot meet the criteria for incitement. I find it fascinating how much of this case will be about threats, both behind the scenes, public, real and/or perceived.

I want people to understand the legal, technical part of incitement so that when they hear the EMOTIONAL part of the riots, they don’t go into a defensive crouch thinking they have to defend the inciting or threatening speech because they think it is going against upholding the 1st Amendment or free speech.  

I’m not a lawyer, but I learned about the specifics of legal incitement  years ago, when I was working to defund RW media. I found out that what one radio host said didn’t meet all the criteria for incitement, since he wasn’t advocating for action that would be imminent. So when I watched Trump’s speech, and he told them to march to the capital, I knew that this fit the criteria for incitement.

Also, actual scholars and lawyers spoke out last week:

“Legally frivolous”: Over 140 lawyers, scholars slam Trump’s First Amendment defense

“The First Amendment is no defense to the article of impeachment leveled against the former President, because the First Amendment does not apply in impeachment proceedings; because the president does not have a First Amendment right to incite a mob and then sit back and do nothing as the hostile mob invades the Capitol and terrorizes Congress; or because, in context, President Trump engaged in unlawful incitement.”

The letter is great, but I really hope the media gets some PROSECUTORS on to talk about incitement because when I see 1st Amendment experts on they are always putting themselves in the shoes of the person saying something horrible.

The right loves to use any attack on their speech and actions as an opportunity to be aggrieved and turn around use the same criteria to attack the left.

I’ve already been seeing this in the Trump incitement case. “But BLM! PORTLAND! You liberals loved that! Kamala Harris set up defense funds for rioters!”  I’ve seen these comments on OANN and Newsmax lately.)

What you will be seeing next week will be campaigns to go after people on the left who they say incited a riot at BLM protests. Another thing that I learned when defunding the right wing media is that they will attack the people who interrupted their revenue stream. They will attempt to say we did the same things at they did — EVEN IF OUR WORDS AND ACTIONS DON’T FIT THE CRITERIA OF INCITEMENT.  And when we don’t have an clear understanding of what is incitement, the mainstream media picks it up “the controversy” and does a “both side do it” story.

I’ve taken actions to hold people and companies accountable for their violent rhetoric and threating speech. I’ve written a lot about threatening speech, violent rhetoric and what we can do to hold people accountable for them.  I looked for economic leverage points because they are the most powerful in a country that cares about money above all else. IT WORKS. As we have seen recently with the voting machine defamation lawsuits, when someone get in the way of the revenue stream, things happen.

But I also know that focusing on the money can’t be the only method, the RW media moved to get funding by Dark Money and hides under the cover of monopolies to push an agenda. (Reminder the New York Post loses 60-100 million dollars EVERY YEAR!)

Will Trump be convicted for incitement? I don’t know, as Schiff and Goldman said on the podcast, the senators have already made up their minds and they are making a political decision. I’ve always believed that when plan A doesn’t work you need to have plan B, C and D ready. So the other thing that I hope Professor Liehoff or Prosecutors talk about during the trial is what else can we do because the jury is rigged?

For example, when I found that the local radio host didn’t meet the specific criteria for incitement, I went to plan B and contacted his management AND the insurance carrier for the radio station. I sent them links to all the violent rhetoric and language from the host and the context of his words.  I also copied the SF District Attorney, Kamala D. Harris.

Before the actual event happened the host suddenly started talking about being peaceful. I also noted that that was the last event that he organized through the station. 

I want Trump to face multiple consequences for all this horrific words and actions, I hope that they bust him on incitement on Jan 6th.  As Schiff said, we need to learn from what happened.

Adam Schiff:

And I continued to worry that if he escapes accountability in this impeachment now, he will feel once again at liberty to engage in new and more destructive conduct, in just the way that we warned during the last trial, that if he was left in office, we could expect him to try to cheat again. If he’s not disqualified from office, we can expect that in four years, he may very well try to cheat in new and more destructive ways.

Let’s be prepared for a failure to convict and commence with the other cases against him. If he gets convicted for felony money laundering he won’t be able to hold office either! Keep prosecuting him for all of his other crimes.

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