A few days ago, Donald Trump yet again made headlines with some controversial statements, this time for mentioning that ‘Second Amendment people’ might be able to do something about his opponent’s ability to appoint Supreme Court judges.

Craig Ashton, Tim Hodson, and Ed Schade did an excellent job of summarizing the issue, so we’ll go ahead and allow them to set the stage and discuss the issue, with only a modicum of annotation.


(Photo courtesy of Gage Skidmore, licensed via CC BY-SA 2.0)

Did Donald Trump encourage his supporters to attack Hillary Clinton?

Craig: “We’re not going to be talking about Donald Trump within the confines of a political discussion. We’re going to talk about Donald Trump and the things that have been said from a legal, constitutional perspective. To try to bring some intellectualism to what was probably an oxymoronic enterprise.

“All right, so Donald Trump has gotten himself into a little bit of trouble… the First Amendment protects free speech very liberally, especially when it’s political. But he got in front of a crowd and said, ‘If she gets to pick her judges, nothing you can do folks. Although the Second Amendment people… maybe there is. I don’t know.’ …So the idea is, is that the Second Amendment specifically talks about having guns, and if she’s already elected and picking judges, the inference would be that, ‘Hey, use the Second Amendment, use your guns, and you can solve the problem.’”

Most speech is protected by the First Amendment. But not all.

Craig: “So, there are certain limitations to the First Amendment, and one of them is ‘inciting words,’ which means that it is a statement that is intended to create likely ‘imminent’ violence.”

Tim Hodson immediately recognized the source of Craig’s insight: “Yes, the Brandenburg test.”

Tim’s allusion to Brandenburg v. Ohio sent Craig straight into legal fanboy mode, which meant that listeners were about to be introduced to one of Craig’s patented history lessons: “Right, Brandenburg! And this goes back to 1969, and these are things that you read when you’re in law school, and I was just going back through this, and it’s really interesting. These [judges] are guys, like Learned Hand, and Oliver Wendell Holmes, Hugo Black, these are all people who either had a hand in writing this, or have basically written about the decision and how it works, in terms of limiting the First Amendment rights to ‘inciting’ words. So when you’re talking about Learned Hand and Oliver Wendell Holmes and Hugo Black, that’s like Michael Jordan, Kobe Bryant, Shaquille O’Neal, you know, fill in the blank. These are the legendary people [of the legal world]. That’s these guys.

“What happened was in Ohio, there was a KKK rally, and basically they wanted to carry firearms, they wanted to burn a cross, they wanted to reference ‘revengeance’ against African-Americans, Jews, and those that supported them. One of the speeches claimed that, ‘our President, our Congress, our Supreme Court [continue] to suppress the white, Caucasian race.’”

Subsequently, the organizer of the rally, Clarence Brandenburg, was charged with violating a law passed in Ohio in 1919 prohibiting the encouragement of criminal acts in order to bring about political change. Brandenburg was convicted, but appealed his case to the local district court, and then took his fight to the Supreme Court, claiming that his right to free speech had been violated.

Craig: “So the United States Supreme Court, in 1969, rendered a decision that says, ‘Look, just advocating violence is not enough [to be grounds for criminal charges]. It’s too broad of a prohibition, and in the First Amendment, the language is very clear.’ It says, ‘Congress shall make no law respecting the establishment of religion, prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press.’

“The Supreme Court said… there’s got to be some limitations [on speech]. But just mere advocacy is not enough. It’s got to be an imminent threat that is likely to occur as a result of your words. So it’s got to happen now.”

Tim offered additional clarification: “You have to have intent too. There has to be mens rea.”

So, do Trump’s words pass the Brandenburg test?

After some further discussion, Craig returned to the purpose of the discussion, Trump’s words, applying the import of the legal discussion to the matter: “What Donald Trump did, clearly if you really look at it, he’s trying to make a joke… he’s trying to be funny.”

Tim: “It’s irresponsible, but…”

Craig: “He’s trying to be funny. He didn’t say it like, ‘SECOND AMENDMENT PEOPLE, pick up your arms!’ I didn’t see an intent there to incite violence.”

Tim: “I agree. It’s buffoonery, but it’s not intentional.”

Craig: “I think that the first element of the Brandenburg test, intent to incite violence, wasn’t there. And then, imminent violence, it didn’t appear that it was going to have them pick up a gun and shoot at somebody at that moment.

“So, in terms of constitutionally protected [speech], even that language under the First Amendment—vis-à-vis the distillation through the Brandenburg v. Ohio case in 1969—Donald Trump is fully within his Constitutional rights to say these things, without question.”