It really annoys me when certain supposed #law experts misrepresent the First Amendment and #FreeSpeech. Not matter how obscene and abhorrent, #Trump’s speech doesn’t meet the Brandenberg test of inciting imminent lawless action.
@SarahOestreich I'm not sure I'd even heard of the Brandenberg test before today. So I'm very much a layperson.
As a layperson, I would think/hope TFG's statements would be evaluated in the light of Jan 6th. It's not as if it's implausible that he might be calling for imminent lawless action. That's no stretch whatsoever.
Wouldn't we wind up in a "freedom of speech / freedom from consequences" argument here, anyway? There are plenty of statements you are permitted to make freely under the 1stA, which may also be civil and/or criminal offenses at the same time.
@WesternInfidels @SarahOestreich The comment Sarah quoted in the OP clearly does not qualify for the Brandenburg test. But the J6 commission made a pretty good argument that his conduct on J6 did pass the test. It remains to be seen if Smith can prove it in a court of law, though.
@LouisIngenthron @WesternInfidels Still haven’t gone into the weeds with that case, but if I recall correctly Smith is leaning more into conspiracy to defraud leading up to the 6th—fake electors, etc. But he may very well use Trump’s public comments on the 6th as evidence in the charges about conspiring to obstruct an official proceeding. Am curious to see how he constructs the case