The Senate will now decide whether to indict President Donald Trump on the House’s charges of inciting the rebellion, and potential criminal charges against Trump have also been discussed, as they arise from the same conduct. These would include federal crimes, such as advocating government rebellion, rebellion, and rebellion.
But it would be difficult to convict Trump in a traditional criminal trial for his speech, even if the Senate convicts him. And if the Senate follows the First Amendment precedent, it can escape conviction there as well.
There is no question that freedom of speech is not absolute. The First Amendment does not ratify rioting. When an immediate threat to public safety, peace, or order appears, the government’s power to punish speech is clear.
On the other hand, the free-speech section of the First Amendment protects a wide variety of speech, even if listeners consider it deeply profound. Speech is not “provoking” unless there is (1) evidence that the speaker is the object of speech to produce imminent chaos and (2) speech is likely to produce that iniquity.
Only speech with a violent image will be protected by the First Amendment. According to the Supreme Court, even the mere tendency of speech to encourage unlawful acts is not enough to punish it.
The High Court said that the culprits should “specially advocate” punitive abetment for taking unlawful action, give detailed instructions to the mob for breaking the law or enlist the mob to commit criminal acts, .
Under the Brandenburg Trial of the Supreme Court, speech cannot be provoked unless the speaker intends wrongdoing to result.
Some, including the senator at Trump’s trial, would point out that the rioters stormed the Capitol after hearing Trump’s speech. For him, the evidence that the speech provoked violence is clear: it was followed by violence.
But defining speech by audience reaction, however, may be an unconstitutional “Heckler veto” as a legal principle.
Heckler’s veto theory provides that the mob’s hostile response does not alter the provocation of protected speech. A speaker is not automatically liable for the acts of someone who was on an intended peaceful performance. Rather, the speaker must have intended to engage in criminal conduct.
Some would argue that Trump’s intention was clear in his use of terms like “strength” and “fight”. can it happen. In other cases the courts have arguably protected violent speech. “We’ll take you to the street again” and “If we catch any of you going to these racist shops,” we’re breaking your damn if Trump’s speech comes closer to advocating violence than language Huh”.
There is also the issue of “adjacency” required to provoke. No violence was reported in Trump’s speech, which was in Ellipse. The Capitol is more than a mile away. The invasion of the Capitol was apparently followed by a rally, but not seconds after the rally, and not in the same place as the rally.
Even if the evidence Trump “intended” to cause violence with his speech, and even if there was evidence that he was the cause of the violence to incite the Capitol, is potentially an issue of whether violence “Imminent” was enough to be the culprit.
Some would conclude that words like “fight” and “strength” gave the crowd detailed instructions to violently enter the Capitol building. The Senate can still plead guilty, even though reasonable minds may differ on these factual findings. A criminal jury should be unanimous.
A criminal jury is bound by a reasonable suspicion standard. The Senate is not. This is tied to the two-thirds supermajority vote standard and not much else.