January 6, Ambiguously Inciting Speech, and the Overt-Acts Solution

37 Constitutional Commentary (Forthcoming)

38 Pages Posted: 31 Oct 2022 Last revised: 21 Jan 2023

Date Written: January 10, 2023


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 his repeated attempts to join the crowd at the Capitol.

This Article proposes a requirement of overt acts for the prosecution of ambiguously inciting speech. Trump’s overt acts offer a principled basis for criminal liability for Trump’s speech, while preserving Brandenburg’s prophylactic approach to protecting against the overcriminalization of speech. The prosecutorial use of overt acts also accords with historical practice going back to the Founding, when the Framers, influenced by prevolutionary English practice, required evidence of overt acts for the most serious of crimes: treason.

In an age of increasing political polarization and violence, drawing a line between permitted and prohibited by our political officials is of the utmost importance. This essay is an attempt to make that line clearer.

Keywords: January 6, Donald Trump, First Amendment, Brandenburg v. Ohio, NAACP v. Claiborne Hardware

Suggested Citation

Rozenshtein, Alan Z. and Shugerman, Jed Handelsman, January 6, Ambiguously Inciting Speech, and the Overt-Acts Solution (January 10, 2023). 37 Constitutional Commentary (Forthcoming), Available at SSRN: https://ssrn.com/abstract=4256652

Alan Z. Rozenshtein (Contact Author)

University of Minnesota Law School ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States

HOME PAGE: http://www.law.umn.edu/profiles/alan-rozenshtein

Jed Handelsman Shugerman

Fordham Law School ( email )

140 West 62nd Street
New York, NY 10023
United States
6462933955 (Phone)
6462933955 (Fax)

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