@peterdrake In theory, that example would depend on the tone of voice, but it certainly could qualify as stochastic terrorism. A key element is often using coded or vague language.

But it still wouldn't come close to criminal incitement.

@MattFerrel @peterdrake @georgetakei I think the J6 commission laid out a pretty compelling argument that his speech on that day was incitement, yes.

But I think most of his speech does fall under stochastic terrorism. He actively seeks to demonize his opponents with fiery rhetoric, which is textbook stochastic terrorism.

@LouisIngenthron @peterdrake @georgetakei

...continued

A big problem with the term "stochastic terrorism" is that it's vague. Depending on who's saying it, it may have some overlap with legally punishable "incitement," or it may have none. So, when someone calls for legal punishment for "stochastic terrorism," it's not really clear, to me at least, how much at odds with the First Amendment that position is. Are they focusing on one instance of "stochastic terrorism" that also qualifies as "incitement" and forgetting that the overlap is (much) less than total. Are they advocating for punishing an entire class of protected speech? Are they really just asking for enforcement against incitement and using the wrong word because "stochastic terrorism" is the new hip phrase all the cool kids are using?

continues...

@LouisIngenthron @peterdrake @georgetakei

For the record, I think that a lot of Trump's "Will no one rid me of this turbulent priest?" statements **DO** qualify as incitement, and probably ought to be prosecuted. Is twice publishing Letitia James's home address a coded way of saying "somebody go kill her"? Yes, I think it is. Would killing her be lawless action? Yep. *Serious* lawless action? Yep.
*Immediate* lawless action? Yes. "Now" seems to be implied along with "kill her." Is someone sufficiently likely to obey this exhortation, under the circumstances? Yes, I think so. I think, given that his exhortation to violence was obeyed on Jan 6, and his recent publication of Obama's home address actually prompted an idiot with a gun to show up, the exhorted lawlessness is a sufficiently likely outcome under these circumstances.

Prosecuting statements made in coded language is always a hard job for a prosecutor, but shying away from such prosecutions encourages repetition.

@cwbussard @peterdrake

> "'Now' seems to be implied along with 'kill her.'"

Except you're inferring both and you can't prosecute someone for unproven inferences.

> "A big problem with the term 'stochastic terrorism' is that it's vague. Depending on who's saying it, it may have some overlap with legally punishable 'incitement,'"

Every definition I know of lists vagueness as a hallmark of stochastic terrorism. And vagueness is incompatible with the term "directing" in the Brandenburg standard. There's a reason 'stochastic terrorism" is a different term than 'incitement'. One is a call to action; the other is not.

@LouisIngenthron @peterdrake

Coded language is not magical armor against prosecution. We can and do prosecute people for the *meaning* of their statements even when the dictionary definitions of the words they used mean something else or when the statement leaves something unsaid but understood. See, e.g., just about every drug conspiracy case.

Prosecuting statements made in coded language can be a hard lift for prosecutors. You've got to convince the jury of the coded meaning beyond a reasonable doubt. But there's a distinction between "things that are not crimes" and "crimes that are a headache to prove." This is the latter, not the former.

@cwbussard @peterdrake I'm not disputing any of that. "Kill him" is the exact same as "whack him" is the exact same as "caramel malt him" if they establish the code is a real thing in a court of law.

But coded language is a very different game from uncoded implications/inferences.

The difference is that coded language is far more objective. You can prove it exists by showing a pattern of past usage.

Proving the intended meaning of an implication however, is essentially impossible (as you referred to) without some kind of sci-fi mind scanning device or an outright confession. There's a reason why 'implication' and 'inference' are different words for similar concepts; because they're subjective, and laws criminalizing subjective speech are ripe for abuse.

Personally, I agree with where the line is drawn and think it should be essentially impossible for the government to jail people for alleged implications.

That Trump knows exactly where the line is and how to stay on the right side of it is, I believe, no accident.