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January 6, Ambiguously Inciting Speech, And The Overt-Acts Rule, Alan Z. Rozenshtein, Jed Handelsman Shugerman
January 6, Ambiguously Inciting Speech, And The Overt-Acts Rule, Alan Z. Rozenshtein, Jed Handelsman Shugerman
Faculty Scholarship
A prosecution of Donald Trump for his role in the January 6 attack on the Capitol would have to address whether the First Amendment protects the inflammatory remarks he made at the “Stop the Steal” rally. A prosecution based solely on the content of Trump’s speech—whether for incitement, insurrection, or obstruction—would face serious constitutional difficulties under Brandenburg v. Ohio’s dual requirements of intent and likely imminence. But a prosecution need not rely solely on the content of Trump’s speech. It can also look to Trump’s actions: his order to the remove the magnetometers from the entrances to the rally and …