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Sen. Sasse -- On the wrong side, again
Dear Editor,
Immediately following the January 6 “siege” upon the U.S. Capitol, Senator Ben Sasse, bringing to bear his tenor of painfully patronizing, pretentious moral outrage, hitched his wagon to the Democrats’ team of wild-eyed jackasses – and proudly rode shotgun for those shameless hypocrites who accuse President Donald Trump of “inciting insurrection.” Once again, our junior Senator revealed his lack of prudence and demonstrated that his oft-lofty pontificating on the Constitution is but political grandstanding. His constituents should ask why it is that, whenever the subject is Trump, Senator Sasse prefers political expediency to actually upholding the Constitution?
Perusing the transcript of President Trump’s ‘Save America’ rally speech, nowhere does one find an incitement to violence, a command to violate the U.S. Capital and trash its chambers, or any phrase that could be objectively construed as “inciting insurrection.” In fact, he explicitly requested a peaceful patriotic protest. Not one of the elements required for criminal incitement is satisfied in his statements. Contrary claims are politically-motivated partisan bull crap. Senator Sasse would better serve the nation if he extracted himself from the go-along to get-along lynch mob, and rather invested time doing his due diligence in legal research. So, let us examine the relevant precedents that govern Free Speech ...
The standard was established by the United States Supreme Court, in its decision: Brandenburg v. Ohio, 395 U.S. 444 (1969). In Brandenburg, the Court concluded that speech advocating illegal conduct is protected under the First Amendment unless the speech is likely to incite “imminent lawless action.”
The following is excerpted from supreme.justia.com
Primary Holding
Speech that supports law-breaking or violence in general is protected by the First Amendment unless it directly encourages people to take an unlawful action immediately.
Opinions – Per Curiam [edit: by unanimous agreement]: Moving beyond the clear and present danger test articulated by Justice Holmes in Schenck v. U.S. (1919), the opinion proposed an imminent lawless action test for political speech that seems to advocate overthrowing the government. It ruled that the government cannot forbid this type of speech unless it is both directed to inciting such action and is likely to actually incite it. By contrast, simply advocating a viewpoint without encouraging people to act on it, or encouraging people to act in a way that they could not be expected to act, would be protected by the First Amendment. This decision also marked the end of the “bad tendency” test created in decisions like Abrams v. U.S. and Whitney v. California. The Court found that the restrictions on the government's ability to control speech needed to be tightened beyond that deferential standard.
Case Commentary: The conditions that must be met to impose criminal liability for speech that incites others to illegal actions are imminent harm, a likelihood that the incited illegal action will occur, and an intent by the speaker to cause imminent illegal actions. This precedent remains the principal standard in this area of First Amendment law, since the Supreme Court has not revisited it. The absence of later decisions may result in part from the standard being constructed in such a way that it is very difficult for the government to meet. The slim possibility of success may make it not worth the effort to promulgate or defend a law in the area in most situations.
***End citation***
Under the “imminent lawless action” test, speech is not protected by the First Amendment if the speaker intends to incite a violation of the law that is both imminent and likely. So, “incitement” is advocacy intended to produce an imminent lawless action, and which is likely to produce such action. Depending on the jurisdiction, incitement it is an “inchoate offense” – where harm is intended but may or may not have actually occurred. The relevant point is that, to be guilty, the person must intend that the offence incited be committed.
Brandenburg reversed a previous Court decision, Schenck v. United States (1919), establishing a new standard in First Amendment cases. The Brandenburg precedent held that a person's words were protected free speech as long as they did not directly incite unlawful action. During World War I, Charles T. Schenck produced a pamphlet arguing that the military draft violated the U.S. Constitution. He was convicted under the 1917 Espionage Act of attempting to cause insubordination in the military and of obstruct recruiting. The Supreme Court, in an opinion written by Justice Oliver Wendell Holmes, upheld Schenck's conviction, and ruled that the Espionage Act did not violate the First Amendment. In deciding Schenck, the Court created the “clear and present danger” test to determine when a state could limit speech. The Court argued that “the character of every act depends upon the circumstances in which it is done.” While in peacetime such pamphlets could be harmless, in wartime they could be considered acts of national insubordination. The Court asserted that, depending on context, words can create a “clear and present danger” that Congress may constitutionally prohibit: “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” Schenck is significant for creating the context-based balancing tests used in reviewing freedom of speech challenges, and provided the oft-quoted prohibition against “shouting fire in a crowded theater.” In Brandenburg v. Ohio, the Court replaced its “clear and present danger” test with the “imminent lawless action” test: that the government may only limit speech that incites unlawful action sooner than the police can arrive to prevent that action. The Court held that the government cannot punish inflammatory speech unless that speech is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Nothing in President Trump’s speech could be construed as having an intent “directed to incite or produce imminent lawless action.” Nor were his words “likely to incite or produce such action.” Being that the walk from the Ellipse to the Capitol building takes approximately 45 minutes, neither could it be asserted that police had insufficient time to arrive and prevent such action, even if one were incited. I do not suppose for a moment that Senator Sasse is unaware of the Brandenburg precedent. The issue is that his irrational hatred for President Trump overrides his supposed respect for the U.S. Constitution – and for that reason alone, Nebraskans should never again re-elect him to the senate.
Bruce C. Desautels
Stratton, Nebraska