Over half a century ago, Clarence Brandenburg stood before a small gathering of his fellow Ku Klux Klansmen dressed in full Klan regalia. “We’re not a revengent organization,” Brandenburg told the gathered bigots, “but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.”
On Tuesday, the Republican presidential nominee made a statement that was far more similar to Brandenberg’s than one would expect from someone who wants to become the Leader of the Free World. “If [Hillary Clinton] gets to pick her judges — there’s nothing you can do, folks,” Donald Trump told a campaign rally. Then he added an allusion to violence: “although the Second Amendment people, maybe there is, I don’t know.”
Both statements contained calls to violence against the speakers’ political opponents. And, at least under the letter of the law, there’s a plausible argument that Trump’s statement was illegal. One federal law provides that “whoever knowingly and willfully threatens to kill, kidnap, or inflict bodily harm upon . . . a major candidate for the office of President or Vice President, or a member of the immediate family of such candidate” commits a federal felony. Another provides that someone who intentionally solicits another person to “engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force against property or against the person of another in violation of the laws of the United States” may also face criminal charges.
Donald Trump, arguably the most important racist leader in the United States for a generation, is the direct beneficiary of Brandenburg’s racist speech and the legal rule that emerged from it.
But such a prosecution would be unconstitutional, thanks to a case that Brandenberg brought up to the Supreme Court. Donald Trump, arguably the most important racist leader in the United States for a generation, is the direct beneficiary of Brandenburg’s racist speech and the legal rule that emerged from it.
In the wake of his suggestion that “there might have to be some revengeance taken” against the president and other high officials, Brandenburg was prosecuted under an Ohio law that punishes individuals who “‘advocate or teach the duty, necessity, or propriety’ of violence ‘as a means of accomplishing industrial or political reform.’” But the Supreme Court ruled that, under the First Amendment, mere advocacy of violence cannot be a crime absent much more.
“The constitutional guarantees of free speech and free press,” a unanimous Court explained in an unsigned opinion, “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.” Thus, to prosecute Brandenburg (or Trump), prosecutors would not simply have to prove that he intended to incite people to commit a crime. They would also have to prove that his speech was likely to cause someone to commit a crime right away.
This is a very high bar, and it is exceedingly unlikely to be met in Trump’s case. Even if the GOP nominee intended for one of his supporters to use Second Amendment remedies against Trump’s political opponents, it is unlikely that someone will hear Trump and immediately take such action — just as it was unlikely that Brandenberg’s speech, which included a far more direct incitement to violence, would cause someone to immediately take violent action against any of the officials the Klan leader named in that speech.
Voters who are upset by Trump’s remarks, in other words, will need to seek a political remedy rather than a legal one. The First Amendment does not permit a prosecution in this case, but voters will get to judge the appropriate consequence for Trump’s words at the polls this November.