Insurrection or Free Speech?

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By: Shannon Catron, EKU graduate assistant

In Brandenburg v. Ohio (1969) the Supreme Court ruled that free speech is no longer protected under the First Amendment when it is intended and likely to provoke imminent and unlawful action, this is referred to as incitement. In Virginia v. Black (2003) the Supreme Court also determined that free speech is not protected under the First Amendment when true threats are made. True threats are statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The court clarified that the speaker need not actually intend to carry out the threat.

In all, five people died as a result of President Trump’s Save America Rally.

On January 6, 2021 President Trump held a rally he called the “Save America Rally” where he stirred anger and falsehoods among his supporters.  Angered by the false belief that President Trump had in fact won the election and the election was being stolen, thousands of his supporters marched to the Capitol in what could be described as an angry mob directed by the President. Many of President Trump’s supporters worked together to plan and coordinate their attack on the Capitol Building — they damaged public property, breached security perimeters, and attacked police officers. In all, five people died as a result of President Trump’s Save America Rally. A female Trump supporter who was an Air Force Veteran was shot inside the Capitol building, a Capitol Police officer died after sustaining injuries in the attack, and three other Trump supporters lost their life as a result of this rally. Over one hundred and thirty police officers were injured that day. The angry mob of Trump supporters chanted threats to hang Vice President Mike Pence and even erected gallows outside the Capitol building.

Were words spoken by President Trump and his supporters at the “Save America Rally” protected under the First Amendment, or did they cross the line? Were words spoken that day true threats, did they incite an insurrection and violence that would damage public property and injure public servants? Absolutely! Words spoken on that day crossed the line and incited an insurrection, but it wasn’t just words spoken on that day, January 6 was just the culmination of words and events that had been building since President Trump began campaigning for President in 2015.

Time and again President Trump condoned and even celebrated violence towards journalists, and those who spoke against him at his rallies. At one point he even offered to pay the legal fees of a man charged with hitting a protestor in the face at one of his rallies. The events that occurred on January 6, 2021 should have come as no surprise to the American people. Perhaps the events of that day could have been prevented altogether had the Court stepped in when the President was inciting violence against journalists, immigrants, and those who did not share his views at one of his many rallies that took place over the previous five years. Like an emboldened child that had been indulged as the result of a tantrum one too many times, the events of January 6 were the result of a final meltdown and a ploy to get his way. However, this time, as a result of building momentum five people lost their lives, many who had given their lives to public service were injured and many of President Trump’s followers lives are changed forever as they await trial for crimes they committed on President Trump’s behalf. Those charged with crimes on that day stand to lose a lot. Many face the loss of freedom and precious time with families through the possibility of prison time and many have already lost careers. All while the people who spoke words of incitement and true threats that day sit free in their luxury homes and lose nothing. Their lives keep going on, like nothing ever happened, when they should be held responsible because let’s face it, words matter! When it comes to drawing the line, perhaps it should have been done long before January 6, 2021.

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