Reference no: EM133390020
Question: On January 6, 2021, members of Congress met at the Capitol building to perform their constitutionally and statutory mandated duty of counting the votes from the electoral college, which finalizes who would serve as President of the United States. On the same day and prior to the joint session of Congress, then-President Donald Trump attended and address the audience of the "Stop the Steal" rally, a political event held about two-hundred yards south of the White House in Washington, D.C., that was organized to protest the outcome of the 2020 Presidential election on the grounds that the election was stolen from President Trump.
The "Stop the Steal" rally was the culmination of a two-month effort to attack the legitimacy of the 2020 Presidential election - an effort that included, but is not limited to:
- Tweets by MAGA supporters to "Stop the Steal" in September of 2020, that undermined certain mail-in voting and warned followers that Democrats planned to cheat in the election.
- After the November 3rd election, calls by President Trump to stop the counting of votes, especially mail-in votes, in the key battle-ground states of Pennsylvania, Georgia, Arizona, Wisconsin, Michigan. In these states, the early vote total showed President Trump winning the state. However, when mail-in voting was added to the total, Joe Biden won the state.
- Sixty-three lawsuits filed to challenge voting procedures and perceived voting irregularities in multiple battle-ground states. President Trump lost all 63 lawsuits.
- Phone call by President Trump to Georgia Secretary of State Brad Raffensperger in which the President asked Raffensperger to find enough votes so that he would win the electoral votes in George. Raffensperger declined to do so.
- Proposals that would send "alternative delegates" from the battleground states to Congress that would proclaim President Trump, and not Joe Biden, won the state
- A plethora of tweets that undermined the legitimacy of the election
- Calls for MAGA supporters to attend "Stop the Steal" rallies in multiple states, the Million Maga March in DC (December of 2020), and the "Stop the Steal" rally on January 6, 2021.
Just after 12 pm on January 6th, Trump delivered his remarks to the audience. During his speech, President Trump made several comments that attacked the legitimacy of the election. For example, he compared the November election to elections held in "third-World Countries." He stated that "Our country has had enough. We will not take it anymore and that's what this is all about. And to use a favorite term that all of you people really came up with: We will stop the steal." He stated that he hoped Vice President Mike Pence (who would preside over the session of Congress) would "do the right thing," (and return the electoral college votes back to the Republican state legislators so that they could revote rather than count the vote that occurred in November.) Trump proclaimed that "we're going to walk down, and I'll be there with you, we're going to walk down, we're going to walk down," to demand that Congress do the right thing and, "only count the electors who have been lawfully slated, lawfully slated. I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard." After speaking to the crowd, the President returned to the White House to watch the Congressional proceedings and its coverage as broadcast by Fox News.
By 1 pm, protestors at the Capitol stormed the outer security fences. This occurred even before Speaker of the House Nancy Pelosi banged the gavel that initiated the joint session of Congress. By 1:30 pm, protestors overtook police on the backside of the Capitol. Shortly after 2 pm, protestors entered the Capitol, and security suspended the House and Senate sessions. By 2:20 pm, Vice President Pence and his family were moved to a safe location. At 2:24 pm, President Trump tweeted, "Mike Pence didn't have the courage to do what should have been done to protect our Country and our Constitution." At 2:38 pm, the President tweeted for the support of Capitol police and asks that the protestors stay peaceful. At 4:17 pm, President Trump tweeted a video to his supporters in which he says, "I know your pain. I know your hurt ... We love you. You're very special. You've seen what happens. You've seen the way others are treated ... I know how you feel, but go home, and go home in peace." Shortly after 6 pm, Capitol police secured the building.
While this is a brief summary of the events that occurred before and on January 6th, the provide a useful account of political heresy (speech against the government) and question what speech can serve as incitement. For this assignment I want you to read the material related to the Nwanguma case and the Supreme Court opinion in Brandenburg. After you have read all this material, I want you to address four specific questions:
First, under what circumstances did the Supreme Court say that speech could constitutionally be restricted in Brandenburg v. Ohio? State and explain the Brandenburg test for incitement.
Second, apply that test to Mr. Trump's January 6th speech and describe for me both the best argument that can be made as to why Mr. Trump's speech meets the test for incitement and the best argument that can be made as to why Mr. Trump's speech does not meet the test for incitement.
Third, I want you to tell me which side in this debate is more persuasive. That is, I want you to tell me whether Mr. Trump's speech meets the test for incitement or does not meet the test for incitement-and why, or why not.
Finally, I want you to step back and think about the Brandenburg test for incitement. What is the best means available for the government to handle speech that attacks the legitimacy of the government and the foundational democratic norms (such as free and fair elections)?