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Last Thursday, former House impeachment manager Eric Swalwell filed a lawsuit against Donald Trump, Donald Trump Jr, Mo Brooks, and Rudy Giuliani for inciting an insurrection in early January. The suit aims to hold the Fanatic Four responsible for the January 6 insurrection.

It's similar to the lawsuit filed by Congressman Bennie Thompson and the NAACP against Trump, Guiliani, the Proud Boys, and the Oathkeepers. Both suits allege violations of the Ku Klux Klan Act of 1871 for, you know, trying to overthrow the government in a bloody revolt at the US Capitol. Swalwell's suit also alleges violations of DC laws about inciting riots and terrorism, disorderly conduct, infliction of emotional distress, aiding and abbetting assault, and negligence.
As the complaint reminds us, "The peaceful transfer of power is a sacrament of American democracy" and that Trump and his crew "defiled that sacrament through a campaign of lies and incendiary rhetoric which led to the sacking of the United States Capitol on January 6, 2021." And how Trump was "delighted," "borderline enthusiastic," and "confused about why other people on his team weren't as excited as he was" during the sacking of the Capitol building.

Listen. I respect the hell out of these lawsuits. But they are going to run up against some pretty major free speech issues — and sooner, rather than later. All of the assholes named as defendants will, without a doubt, file motions to dismiss the lawsuit on First Amendment grounds before these cases can proceed. And they're going to have to clear a high bar to get past the First Amendment issues these suits raise.

Let's talk about incitement and the First Amendment!

Remember during Trump Impeachment 2.0, when his lawyers kept ranting about the First Amendment and Brandenburg v. Hayes and getting it entirely wrong? Well, here is what it actually says.

For most of American history, there really weren't any Supreme Court cases about the reach of the First Amendment, making it pretty easy for both the feds and state governments to criminalize speech. That changed in the early 20th century, when nationalism was on steroids and the Espionage Act was passed during WWI, making it a crime to cause or attempt to cause "insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces of the United States."

Early Supreme Court precedent about free speech and the incitement, when prosecutors were mostly going after those scary socialists and communists and labor organizers, SCOTUS precedent was ... well, not great, Bob. The Court upheld the convictions of Charles Schenck for passing out anti-war leaflets and a group of Russian refugees for, distributing leaflets opposing US intervention in the Russian civil war. These very dangerous leaflets, the Court said, presented a "clear and present danger" of making other people do illegal things.

Eugene Debs was thrown in prison for a speech opposing the war, after he said VERY TREASONOUS things like "most loyal comrades were paying the penalty to the working class[.]" In Debs' case, the Court even admitted that he hadn't spoken any words that presented a "clear and present danger[,]" but upheld his conviction anyway, claiming his speech had a "natural tendency and a probable effect to obstruct the recruiting services[.]"

After the war, Charlotte Anita Whitney, a prominent suffragette, was convicted under the California Criminal Syndicalism Act for the crime of ... being a communist.

The Court allowed activists to be imprisoned for "subversive" speech under the "clear and present danger" standard as late as 1951, upholding the conviction of Eugene Dennis for being a communist and Irving Feiner for encouraging Black people to "rise up in arms and fight for equal rights."

Freedom of speech and association, indeed.

But don't worry, because during the Civil Rights Movement, when white supremacists started to challenge criminal convictions, the Supreme Court finally started to realize that it was bad to imprison people just for saying words. So in 1969, when Clarence Brandenburg, a KKK leader in Ohio, gave a speech at a cross-burning rally about getting "revengeance" against the government, n-words and Jews, the Court finally stepped in to protect First Amendment rights.

Brandenburg was represented by the ACLU because of the First Amendment issues involved — and the klan leader's ACLU legal team included now-DC Congresswoman Eleanor Holmes Norton, a Black woman, and civil rights lawyer and activist Allen Brown, a Jewish man. And if you're about to shit on the ACLU for taking this case, please remember how much SCOTUS needed to improve its incitement jurisprudence at this point. Clarence Brandenburg was a horrible person, but the free speech issues raised by this case were very real.

In Brandenburg v. Ohio, the Court finally got rid of the "clear and present danger" and "bad tendency" tests, which for decades had allowed the government to imprison people whose speech it didn't like. Instead, the justices ruled that the First Amendment requires stronger protections for speech — and that everything the Klan leader had said was speech protected by the First Amendment.

Post-Brandenburg, for speech to be considered "incitement," it has to be (1) intended to produce lawless action; and (2) likely to incite or produce lawless action. It's a pretty high standard to meet — and for good reason. Just take a look at the earlier incitement cases to see why.

So anyway, about this Trump suit

The Swalwell suit alleges that the riot was "a direct and foreseeable consequence of the Defendants' false and incendiary allegations of fraud and theft, and in direct response to the Defendants' express calls for violence at the rally" and that "[t]he purpose of the rally was to gather a crowd in an effort to incite them to disrupt the certification of the Electoral College votes by Congress[.]"

But whether that's enough for the case to proceed remains to be seen. The Swalwell suit and NAACP/Bennie Thompson suit are civil actions, not criminal prosecutions, but the Brandenburg test still applies, because protected speech is protected speech.

On the morning of January 6, Trump told the crowd to "fight like hell" and "walk down Pennsylvania Avenue [...] to the Capitol" — and almost half of them did. Guiliani said they should do "trial by combat." Mo Brooks asked the crowd if it was ready to fight and said, "Today is the day American patriots start taking down names and kicking ass[.]" Junior did some blow and yelled, "You can be a hero, or you can be a zero. If you're gonna be the zero, and not the hero, we're coming for you, and we're gonna have a good time doing it."

I think it's important to bring these lawsuits. The people who purposefully incited a violent insurrection have yet to face any actual consequences. We need to fight against their fascism with everything we've got, before the state of our country gets even worse. And if either this or the NAACP's suit gets past a motion to dismiss, the discovery in these cases is gonna be LIT.

Whether either lawsuit will get that far remains to be seen. But hey, if Trump brings his impeachment lawyers back for this one, Swalwell and the NAACP should definitely have a fighting chance.

Here's the complaint!


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Jamie Lynn Crofts
Jamie Lynn Crofts is sick of your bullshit. When she’s not wrangling cats, she’s probably writing about nerdy legal stuff, rocking out at karaoke, or tweeting about god knows what. Jamie would kindly like to remind everyone that it’s perfectly legal to tell Bob Murray to eat shit.
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