All states have laws that prohibit assault and destruction of others’ property. States and the federal government also have laws that prohibit bystanders from encouraging others to engage in violence. The latter is known as incitement.

When violence has erupted in American streets between groups supporting President Donald Trump and those opposed to him – and he encouraged his supporters to be “much tougher” than the other side and to “hit back” – did his use of intemperate words incite violence?

The use of federal and state incitement laws has a long and sordid history, which nearly always ends with the punishment of those expressing an unpopular viewpoint. From the 1900s to the 1950s, the states and the federal government prosecuted people who did no more than utter words. The prosecutor argued that the words encouraged harm and therefore were a clear and present danger.

Some folks were even prosecuted and convicted for belonging to groups that encouraged violence, though the individual defendants never personally did the encouragement.

These prosecutions – largely upheld by the Supreme Court – defied the clear language and plain meaning of the First Amendment. It states that “Congress shall make no law... abridging the freedom of speech.” 

James Madison, who drafted the Bill of Rights – the first 10 amendments to the Constitution – insisted that the article “the” precede “freedom,” as in “the freedom of speech” so as to make it manifestly clear that those who proposed and ratified the First Amendment recognized that the freedom of speech preceded the existence of the government.

To the signers of the Declaration of Independence and the ratifiers of the Constitution and the Bill of Rights, the freedom of speech, along with other freedoms, is a natural right because it comes of our humanity, not from the government.

I recount this brief history and offer this small philosophical nuance because the freedom of speech is supposed to be a bulwark against prosecutions for speech. Thomas Jefferson once argued that since words neither picked his pocket nor broke his legs, all words are protected.

That was the common understanding of the freedom of speech at the creation of our republic.

Sadly, that understanding gave way to the exercise of raw power and the fear of losing power when Congress, in 1798, during the presidency of John Adams, enacted the Alien and Sedition Acts. One of those acts made it a crime to utter “false, scandalous, or malicious” speech against the government or the president or to utter speech in opposition to the government’s efforts to shore up defenses from a war with France that never came about.

It is hard to accept that some of the same human beings who ratified, “Congress shall make no law... abridging the freedom of speech” also enacted laws that abridged speech. But they did.

Eventually, Jefferson defeated Adams for president and the federalists in Congress repealed their own anti-speech portion of the acts, lest the Jefferson administration have it available as a tool for repression against them. That was hardly necessary as Jefferson pardoned those who had been convicted under Adams for uttering speech in violation of the acts.

Regrettably, the history of free speech in America is not the history of patient tolerance. Rather, it is the history of the government violating the First Amendment.

Even in the present era, the so-called Patriot Act of 2001 forbids the recipient of a nonjudicial search warrant (a warrant for which one federal agent has authorized another to search business or financial records in the custody of a record keeper, such as a physician or a bank) from using speech to tell anyone about the receipt of the warrant.

From time to time, the Supreme Court has entered this gloomy picture in an effort to define just how far one can go with uttering words that the government hates or fears. Its most significant modern advance in that direction came in a unanimous opinion in 1969, called Brandenburg v. Ohio. In that case, Clarence Brandenburg, a KKK leader, set out to incite violence against Jews and Blacks in Washington, D.C.

But he did so by encouraging violence at a rally in Hamilton County, Ohio. Though he acknowledged that violence was his purpose, he claimed his words were protected. He was convicted under an Ohio law that prohibited inciting violence – even if the violence never comes about.

The Supreme Court reversed his conviction, holding that it violated the First Amendment. The court ruled that all innocuous speech is absolutely protected and all speech is innocuous when there is time for more speech to rebut it. Since Brandenburg spoke in Ohio and the violence he sought to foment was to have occurred in Washington, there was obviously time for saner heads to utter speech rebutting his hateful words.

Now back to the present use of words to incite violence. President Trump has been accused of inciting violence by his use of words. He has said many things: “When the looting starts, the shooting starts,” “Knock the crap out of them,” there are “very fine people on both sides” of this violence, “any guy who can do a body slam, he’s my type,” and “the audience hit back; that’s what we need a little more of.”

Even though the president’s language was referring to violence in American cities last summer and this summer, and even though his supporters may take some consolation in his harsh and supportive words, because there was time for more speech to rebut what he said, his words are protected.

I write this as a constitutional analysis, not a political one. The voters will decide if Trump’s words are prudent or helpful or even presidential. But the courts will leave him alone.

Andrew Peter Napolitano is an American syndicated columnist whose work appears in numerous publications including The Washington Times and Reason. He served as a New Jersey Superior Court judge from 1987 to 1995.

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