"Incitement" has become another word for "Trump criticism"

 

“Incitement” is now MAGA’s favorite word, or rather its favorite pretext for violating First Amendment and due process rights. Donald Trump is enlisting the power of the federal government to go after left-leaning groups that he thinks (or convinces his cult to think) have something to do with violence. Before we get to the glaring constitutional problem, it behooves us to try to figure out what MAGA thinks constitutes “incitement.”

Vice President JD Vance’s patently absurd lie that Haitian immigrants were eating cats and dogs? MAGA apparently thinks this is not incitement, even though it spawned bomb and death threats.

The Great Replacement theory (including reprehensible comments that immigrants are poisoning our blood and are swamping Whites, etc.)? Again, MAGA demagogues will not call that incitement, although it was recited at numerous White supremacists’ mass murders.

Sending military troops and federal immigration agents into a overwhelmingly peaceful Los Angeles? Trump and his ilk refused to acknowledge that was incitement—even though deployment of intimidating military forces provoked violence and resulted in numerous cases of excessive force.

California National Guard in front of peaceful protestors in Los Angeles, a city that President Trump characterized on social media as being filled with “violent, insurrectionist mobs”

Ah, but truthfully repeating Charlie Kirk’s rhetoric? MAGA voices scream “Incitement!”

Funding progressive causes that help the environment, feed the hungry, or aid immigrants? Again, the MAGA bullies would have us believe that such groups or the funding of their causes are inciting violence.

Fascistic behavior such as violently snatching people off the street and sending them to third-world hell holes? Not incitement, in the MAGA cult. But calling out that fascistic behavior? That, in their ideological bubble, constitutes incitement.

You get the drift. MAGA forces refuse to take responsibility for vicious rhetoric and violence from the right; instead, it is regarded as a cudgel to menace their opponents.

Plainly, MAGA authoritarians have fallen in love with the word “incitement” to justify their unconstitutional, un-American assault on opponents. Somewhere they got the idea that hate speech (which they define only as anti-MAGA, not the racist, homophobic, xenophobic, or misogynistic sludge found on Twitter or voiced at gatherings such as CPAC) is not protected under the First Amendment. That’s absolutely wrong. It absolutely is protected, as even conservatives were sheepishly forced to acknowledge when the dull-witted attorney general of the United States got it wrong.

Moreover, even “incitement to commit a crime or violence” is not necessarily illegal (as Donald Trump’s defenders were quick to claim regarding his call for the armed mob to go to the Capitol on Jan. 6) unless it meets the so-called Brandenburg test. In Brandenburg v. Ohio, a case involving a KKK leader speaking at a Klan rally, the Supreme Court reaffirmed “the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

Even if some people in a group are violent, the First Amendment does not permit the government to disband or punish a entire group that engages in protected speech. (Consider what would have happened had former president Joe Biden banned the Proud Boys after Jan. 6 or tried to take Steve Bannon off the air.) Imagine the outcry if we tried to ban online gaming because a certain category of alienated young men were enmeshed in a dark online world where they find inspiration to do performative violence.

In other words, statements such as “Get ICE off our streets” or “Trump is a criminal” or “Stephen Miller is a fascist” are fully protected speech. Absent any advocacy to engage imminent lawless action, even statements such as “ICE better not come here” or “ICE will regret coming here” are core First Amendment speech.

As the ACLU has explained:

While the First Amendment does not protect incitement — speech that is intended and likely to cause imminent violence, as established in Brandenburg v. Ohio, litigated by the ACLU — or true threats, an expression of a serious intent to commit a violent act against another person, speech considered to be hateful is not enough to qualify. Indeed, whether speech is hateful is typically a matter of opinion. As Supreme Court Justice John Marshall Harlan II said in Cohen v. California (1971), “one man’s vulgarity is another man’s lyric.” Posting an offensive joke or condemning someone else’s views in harsh terms is generally protected by the First Amendment, regardless of how much someone else doesn’t want to hear it.

Put simply, there is a world of difference between “theoretical future violence” and “an immediate risk of harm to a real person.” And we are not even in the ballpark of sanctionable speech when someone is advocating a point of view (e.g., “MAGA leaders are fascists”), which is inarguably core protected activity.

Let’s stop pretending Trump and his autocratic minions are concerned about incitement to commit violence. They are paranoid and furious about criticism, jokes, advocacy, and other speech that underscores their racism, xenophobia, anti-American authoritarianism, misogyny, anti-science nuttery, and conspiracy-mongering. Aside from their lie that most violence comes from left-wing groups and the hogwash that every killing can be categorized as “left” or “right” inspired, there simply is not a constitutionally appropriate way to go after groups who say “bad things” about MAGA doctrine and conduct.

If Trump and his ilk had their way, they would be allowed to say anything, including exhorting a mob to overthrow an election, but liberals could be silenced and/or punished because they (incorrectly) think more violence comes from the left.

This is precisely what the Constitution prohibits. So please, let us do away with the phony rhetoric about “incitement” and be candid. The real threat to America is the hypocritically, dangerous and un-American attack on free speech, association, and advocacy. Trump cannot ban something simply by labeling it “incitement”—although that is precisely what Trump and his MAGA enablers intend to do, if the American people let them.

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