Rozenshtein and Sugarman on January 6, Ambiguously Inciting Speech, and the Overt-Acts Solution @ARozenshtein @UofMNLawSchool @jedshug @FordhamLawNYC @ConstComm

Alan Z. Rozenshtein, University of Minnesota Law School, and Jed Handelsman Shugerman, Fordham Law School, are publishing January 6, Ambiguously Inciting Speech, and the Overt-Acts Solution in volume 37 of Constitutional Commentary (2023). Here is the abstract.

A prosecution of Donald Trump for his role in the January 6 attack on the Capitol would have to address whether the First Amendment protects the inflammatory remarks he made at the “Stop the Steal” rally. A prosecution based solely on the content of Trump’s speech—whether for incitement, insurrection, or obstruction—would face serious constitutional difficulties under Brandenburg v. Ohio’s dual requirements of intent and likely imminence. But a prosecution need not rely solely on the content of Trump’s speech. It can also look to Trump’s actions: his order to the remove the magnetometers from the entrances to the rally and his repeated attempts to join the crowd at the Capitol. This Article proposes a requirement of overt acts for the prosecution of ambiguously inciting speech. Trump’s overt acts offer a principled basis for criminal liability for Trump’s speech, while preserving Brandenburg’s prophylactic approach to protecting against the overcriminalization of speech. The prosecutorial use of overt acts also accords with historical practice going back to the Founding, when the Framers, influenced by prevolutionary English practice, required evidence of overt acts for the most serious of crimes: treason. In an age of increasing political polarization and violence, drawing a line between permitted and prohibited by our political officials is of the utmost importance. This essay is an attempt to make that line clearer.

Download the article from SSRN at the link.