Legal expert: Election rants, threats are pushing First Amendment limits
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There’s an ugly feeling in the air. A Trump supporter in Ohio, Dan Bowman, tells a reporter, “If [Hillary ClintonHillary Diane Rodham ClintonTrump retweets personal attacks on Clinton, Pelosi, Abrams Biden swipes at Trump: 'Presidency is about a lot more than tweeting from your golf cart' GOP faces internal conflicts on fifth coronavirus bill MORE’s] in office, I hope we can start a coup. She should be in prison or shot. That’s how I feel about it. We’re going to have a revolution and take them out of office if that’s what it takes. There’s going to be a lot of bloodshed. But that’s what it’s going to take.” 

An ex-House member, Joe Walsh, tweets “On November 9th, if Trump loses, I'm grabbing my musket. You in?” Facebook, comment sections and message boards are full of angry people worrying that the vote will be “rigged” and discussing what they will do if the election is “stolen” from Donald TrumpDonald John TrumpTrump retweets personal attacks on Clinton, Pelosi, Abrams Biden swipes at Trump: 'Presidency is about a lot more than tweeting from your golf cart' GOP sues California over Newsom's vote-by-mail order MORE.

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Free speech is an American’s birthright. But for the first time in living memory, ordinary people are pushing the boundaries of the First Amendment. Message boards, on-line comment sections and social media make the problem even worse. A lot of these people may think that they are just blowing off steam.

But when you are actually discussing using violence to overthrow the government or to interfere with an election, there’s a very thin line between “just talk” and criminal conspiracy. In the modern world, it is perfectly possible to become a member of a criminal conspiracy by “liking” a tweet.

Conspiracy is a little different than most crimes. The essence of conspiracy is an agreement by two or more people to do something illegal. Some conspiracy statutes require that at least one of the participants take some concrete step — known as an “overt act” — toward actually carrying out the conspiracy. Some statutes do not.

Conspiring to overthrow the government by force or to “prevent, hinder, or delay the execution of any law of the United States” by force is known as “Seditious Conspiracy” and is punishable by 20 years in federal prison.  (18 USC 2384.) Just agreeing to use force to overthrow the government or to prevent Hillary Clinton from becoming President can be a federal crime, even if you never take action.

Because seditious conspiracy is essentially speech, the First Amendment comes into play. In a case called Brandenburg v. Ohio, the Supreme Court held that mere speech cannot be punished unless it is both aimed at producing “imminent lawless action” and it is likely to produce such action. So writing a book about the need for a revolution won’t pass this test. Someone exhorting a crowd to burn down City Hall very well might.

But “imminent” doesn’t necessarily mean “immediately.” Depending on the details of the conspiracy, lawless action might be “imminent” even if the conspirators understand that no violence might occur for weeks or months.

The Brandenburg test has a lot to tell us about this election. A year ago, people on message boards and social media discussing coups and revolutions were something of a joke. No one took them seriously, probably not even themselves, so all the talk was unlikely to produce action of any sort.

But the situation is different now and might be a lot different on November 9th if millions of Donald Trump’s supporters believe the election has been stolen from them. Tossing a burning match into a bucket of water isn’t likely to produce a fire. Tossing a burning match into a bucket of gasoline is.

Conspiracy law has another unpleasant wrinkle. If you enter into a conspiracy, you are guilty of every reasonably foreseeable crime that anyone in the conspiracy commits even if you, personally, have done nothing.

Let’s suppose you post on a message board and you, along with dozens of other people, participate in a thread where everyone agrees, to quote Mr. Bowman, that “If Hillary Clinton’s in office, I hope we can start a coup. She should be in prison or shot.” Suppose someone participating in that thread tries to shoot Hillary Clinton but misses and is tackled by the Secret Service. Congratulations. You are now guilty of attempted murder.

You might think this is a fanciful scenario. It is not. The government uses theories like this regularly in terrorism prosecutions. Make no mistake. Using violence to overturn the results of an election is terrorism. And the government will treat it as such. I can guarantee that if someone does do something tragic after the election, the FBI is going to look very carefully at their social media history. Anyone found to have been egging on the perpetrator is going to find themselves in a lot of trouble they didn’t expect.

The First Amendment is a national treasure. It protects our right to speak our minds without fear of government sanction. But the First Amendment also has limits. It does not protect violent conspiracy or planning bloody revolutions. It doesn’t protect casual talk about the “need” to assassinate the President. Know those limits and respect them.

On November 9th, this election will be over and we will need to start putting the country back together. Start that process today. Speak out against calls for violence. Be a voice for civility and calm. Stand up for our democratic traditions. Not only will this help keep you out of trouble, it will help keep our country out of trouble. 

Stay safe out there, people.

Truax is an appellate attorney in San Diego, California. He is also the editor of HoldingOurNosesForHillary.com.


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