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

37 Constitutional Commentary 275 (2022)

Minnesota Legal Studies Research Paper No. 23-32

40 Pages Posted: 31 Oct 2022 Last revised: 7 Dec 2023

See all articles by Alan Z. Rozenshtein

Alan Z. Rozenshtein

University of Minnesota Law School

Jed H. Shugerman

Boston University - School of Law

Date Written: December 7, 2023

Abstract

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 prerevolutionary 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 speech 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 H., January 6, Ambiguously Inciting Speech, and the Overt-Acts Rule (December 7, 2023). 37 Constitutional Commentary 275 (2022), Minnesota Legal Studies Research Paper No. 23-32, 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 H. Shugerman

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

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