Incitement in the Era of Trump and Charlottesville

• Author: Joanne Sweeny
• Position: Many thanks to Ron Krotoszynsky, Tim Hall and Sam Marcosson for their comments on this article
• Pages: 95-147

INCITEMENT IN THE ERA OF TRUMP AND

CHARLOTTESVILLE

DR. JOANNE SWEENY*

ABSTRACT

In the wake of several violent rallies in 2016 and 2017, debate over

incitement cases has begun to appear in the news and the courts.

Incitement is a historic exception to the First Amendment that has been

rarely used except in times of political unrest. Unsurprisingly, then, as

political unrest has re-emerged in the wake of Donald Trump’s presidential

campaign, incitement has become relevant once again. The organizers and

attendees of these modern political rallies make ample use of technology,

including ubiquitous media reporting and the ease and anonymity of social

media, and therefore present an odd fit for t he more traditional incitement

definition stated in Brandenburg v. Ohio. In particular, this article argues

that the 2016 Trump rally in Louisville and the Unite the Right rally in

Charlottesville show how incitement should evolve to include more

context, and how that context will become essential to properly decide

incitement cases going forward.

I. INTRODUCTION

The June 29, 2018 shooting at a newspaper in Annapolis, Maryland

made headlines not only for the tragic loss of five lives,

1

but because it

came only a few days after both Donald Trump and Milo Yiannopoulos

forcefully criticized journalists. Less than three days before the shooting,

Trump pointed to a journalist at a rally in South Carolina and called him an

“enemy of the people.”

2

That same day, the news website the Daily Beast

Copyright © 2019, Dr. JoAnne Sweeny.

* Many thanks to Ron Krotoszynsky, Tim Hall and Sam Marcosson for their comments

on this article. This article also benefitted immensely from the research assistance provided

by Calesia Henson.

1

Emanuella Grinberg & Dakin Andone, W hat We Know About the Annapolis

Newspaper Shooting, CNN (June 29, 2018, 9:32 PM), https://www.cnn.com/2018/06/28/us/

what-we-know-annapolis-shooting/index.html [https://perma.cc/3P49-D9ET].

2

Chris Baynes, Maryland Shooting: Trump Ducks Questions over Capital Gazette

Killings, as President’s Attacks on Journalists Come into Focus, THE INDEPENDENT (June

29, 2018, 10:28 AM), https://www.independent.co.uk/news/world/americas/us-politics/mar

yland-shooting-trump-reaction-video-questions-capital-gazette-fake-news-journalistskilled-

a8422451.html [https://perma.cc/XXF3-MHAF] (Trump was also cr iticized for refusing to

talk to journalists about the shooting and for initially refusing to fly the White House flag at

half-mast). See also Scott Neuman & Colin Dwyer, After Delay, Trump Orders Flags At

(continued)

586 CAPITAL UNIVERSITY LAW REVIEW [47:585

published comments by Yiannopoulos stating, “I can’t wait for the

vigilante squads to start gunning journalists down on sight.”

3

Trump and

Yiannopoulos’ remarks, and the violence that quickly followed, led some

journalists to accuse them of being responsible for the deaths of four

journalists and a newspaper staff member.

4

After the Annapolis shooting,

Yiannopoulos stated that his comment was just him “trolling” the

journalists he wrote to.

5

In contrast, Trump has not toned down his

rhetoric since the Annapolis shooting but still publicly rails against “fake

news”

6

and still calls the media the “enemy of the people.”

7

Did Trump and Yiannopoulis cause the violence in Annapolis? It’s

hard to say, particularly because the shooter had filed a defamation lawsuit

against the paper and he had also sent letters to employees at the paper,

which indicates that the shooting was the result of a personal grudge.

8

But

the anti-media rhetoric propounded by Trump, Yiannopoulis, and others

Half-Staff F or Annapolis Attack, NPR (July 3, 2018, 4:44 AM), https://www.npr.org/2018/0

7/03/625536732/white-house-wont-order-flags-at-half-staff-to-honor-annapolis-newspaper-

staff?utm_source=facebook.com&utm_medium=social&utm_campaign=politics&utm_ter

m=nprnews&utm_content=20180703 [https://perma.cc/LZ5J-AJ 4U]; Justin Doom &

Meghan Keneally, Trump orders flags to half-staff for newsroom shooting after White

House initially rejected Annapolis mayor’s request, ABC NEWS (July 3, 2018, 10:17 AM),

https://abcnews.go.com/US/trump-rejects-request-annapolis-mayor-lower-flagsslain/story?i

d=56332864 [https://perma.cc/RN3C-78RU].

3

Davis Richardson, Milo Yiannopoulos Encourages Vigilantes to Start “Gunning

Journalists Down,” OBSERVER (June 26, 2018, 12:32 PM), http://observer.com/2018/06/mil

o-yiannopoulos-encourages-vigilant es-start-gunning-journalists-down/ [https://perma.cc/69

CE-7LBL].

4

Baynes, supra note 2; Max Greenwood, Milo Yiannopoulos: My Call for Shooting

Journalists was Just a “troll”, THE HILL (June 28, 2018, 5:04 PM), http://thehill.com/

homenews/media/394715-milo-yiannopoulos-my-call-for-shooting-journalists-was-just-a-tr

oll [https://perma.cc/7AQD-SEGY].

5

Greenwood, supra note 4.

6

Chris Cillizza, The 11 Most Dangerous Things Donald Trump Said in his Montana

Speech, CNN (July 6, 2018, 5:07 PM ), https://www.cnn.com/2018/07/06/politics/donald-

trump-montana-speech/index.html [https://perma.cc/Y8FR-VGZ4].

7

Alexandra Silets, Trump Amps Up Assault on Media, the “Enemy of the People”, CHI.

TONIGHT (Aug. 6, 2018, 6:01 PM), https://news.wttw.com/2018/08/06/trump-amps-assault-

media-enemy-people [https://perma.cc/VFW8-KNXR]. On August 16, 2018, 350

newspapers published editorials criticizing Trump’s rhetoric against the media. See

Madison Park et al., These are the ne wspapers telling Trump that journalists are not the

enemy, CNN (Aug. 16, 2018, 1:38 PM), https://www.cnn.com/2018/08/16/politics/newspap

er-editorials-trump-list/index.html [https://perma.cc/DM7Q-QHMA].

8

Matt Stevens & Daniel Victor, Annapolis Shooting Suspect Wanted to “Kill Every

Person” in Newsroom, Letter States, N.Y. TIMES (July 2, 2018), https://www.nytimes.com/

2018/07/02/us/annapolis-shooting-woman-harassed.html [https://perma.cc/6ENE-5QVD].

2019] INCITEMENT IN THE ERA 587

(such as Fox News personality Sean Hannity)

9

, which has caused the

public to increasingly distrust the media,

10

may have made the shooter

more likely to carry out his acts. The question is whether these potential

instigators can be held legally responsible, or are their words protected

under the First Amendment?

It would be possible to hold these speakers legally responsible

notwithstanding any First Amendment protection they may claim if their

speech constitutes incitement. Incitement is an exception to First

Amendment speech protections that applies, essentially, when a speaker

causes others to engage in violence or illegal acts.

11

Incitement has been

historically prominent but has mostly languished in the courts since the

1960s and 1970s.

12

All that is changing, however, with the current

political climate. From presidential campaign stops that erupt in violence

13

to alt-right rallies that are meticulously planned to violently engage with

antifascist groups,

14

incitement has repeatedly been in the news and the

courtrooms. Moreover, these violent rallies are continuing,

15

which means

that this issue is likely to continue to come up, making a clearer and

context-driver definition of incitement essential.

9

Hannity: The Fake News Media Have a New Target, FOX NEWS (Apr. 17, 2018),

http://www.foxnews.com/transcript/2018/04/17/hannity-fake-news-media-have-new-target.

html [https://perma.cc/T5LL-R6UH].

10

Jonathan Easley, Poll: Majority Says Mainstream Media Publishes Fake News, THE

HILL (May 24, 2017, 10:10 AM), http://thehill.com/homenews/campaign/334897-poll-

majority-says-mai nstre am-media-publishes-fake-news [https://perma.cc/6R3P-29SA].

11

Lyrissa Barnett Lidsky, Incendiary Speech and Social Media, 44 TEX. TECH L. REV.

147, 150 (2011).

12

Mark Strass er, Incitement, Threats, and Constitutional Guarantees: First Amendment

Protections Pre- and Post-Elonis, 14 U. N.H. L. REV. 163, 164–71 (2015).

13

Eliott C. McLaughlin, It’s Plausible Trump Incited Violence, Federal Judge Rules in

OK’ing Lawsuit, CNN (Apr. 3, 2017, 11:50 AM), https://www.cnn.com/2017/04/02/politics

/donald-trump-lawsuit-incite-violence-kentucky-rally/index.html [https://perma.cc/GH7R-8

62Z].

14

Kevin Roose, This Was the Alt-Right’s Favorite Chat App. Then Came

Charlottesville, N.Y. TIMES (Aug. 15, 2017), https://www.nytimes.com/2017/08/15/technol

ogy/discord-chat-app-alt-right.html [https://perma.cc/Q8LB-NWY9].

15

Tom Embury-Dennis, Trump supporters filmed hurling sustained abuse at journalists

following Make America Great Again rally, THE INDEPENDENT (Aug. 1, 2018, 10:30 AM),

https://www.independent.co.uk/news/world/americas/trump-florida-rally-supporters-cnn-

jim-acosta-tampa-maga-a8472436.html [https://perma.cc/7QN2-G8FJ]; Jane Coaston, One

year after Charlottesville, the alt-right is gathering again—in Washington, VOX (Aug. 9,

2018, 2:14 PM), https://www.vox.com/2018/8/6/17644776/unite-the-right-2-explained

[https://perma.cc/NMS3-N3M3].