Incitement in the Era of Trump and Charlottesville

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 the 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. I NTRODUCTION 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, What 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 criticized 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 For 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-vigilantes-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 newspapers 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-mainstream-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 Strasser, 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-cnnjim-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]. 588 CAPITAL UNIVERSITY LAW REVIEW [47:585 Recent scholarly articles have analyzed incitement doctrine in the realm of online hate speech 16 or support for terrorism 17 but none have truly conceptually engaged with incitement, which is relevant today than it has been in decades. This article examines the evolution of the incitement doctrine, places it within is historical context and shows that, like the anti-war protests of the 1910s and 1960s, and the civil rights protests (both for and against) of the 1960s, the current political culture has changed public discourse so that incitement has, once again, become a viable basis to reject many speakers’ claims that their incendiary speech is protected under the First Amendment. Part I of this article takes a fresh look at incitement using the recent court cases brought against Donald Trump and the various organizers of the Charlottesville rally, both of which allege incitement. Part II examines the history of incitement and its evolution over time. Part II also analyzes court cases and scholarly articles to provide a working definition of incitement...