The First Amendment put the ball in your lap – and Republican leaders’

Many of Donald Trump’s prominent fans have been inciting and threatening violence since his indictment last week, in newly brazen, martial language.

Rep. Clay Higgins (R-LA) described the federal indictment of Trump as “a perimeter probe from the oppressors” in a tweet with other language calling on his followers to prepare for war, not elections. Rep. Andy Biggs (R-AZ) was more explicit: “we have now reached a war phase. Eye for an eye.” And Kari Lake, who mimicked her idol Trump by refusing to accept her loss in last year’s Arizona gubernatorial race, responded to his latest indictment by saying that anyone who wants “to get to” Trump will have to get through her and 75 million Americans like her, most of whom she said are card-carrying members of the NRA (National Rifle Association). Lake added preposterously, “that’s not a threat, that’s a public service announcement.”

Embed from Getty Images

Of course it was a threat, and in many other countries it would also be a crime to threaten or incite violence against prosecutors or other state officials.

But none of this is illegal in the United States, which has the most speech-protective national law in the world. U.S. law allows people to make a wide variety of awful assertions in public, from hate speech to incitement to violence. This constitutes a unique, daring bet that democracy and social peace can be protected from dangerous speech in some way other than criminalizing it – with something other than law. The alternative we ostensibly rely on is the marketplace of ideas, but it’s not working now, since the Republicans who could keep the market functioning have bowed out of it.

Under the landmark U.S. Supreme Court case of Brandenburg v Ohio, incitement of violence not only isn’t criminal, it is protected by the First Amendment of the U.S. Constitution, unless the incitement is likely to bring “imminent lawless action.” Rep. Higgins’ and Biggs’ tweets are far from that narrow category. It’s also worth noting that by the time someone incites violence so effectively that it’s likely to be followed by imminent lawless action, (usually violence of some kind), it’s too late to prevent that violence.

Threats like Lake’s are also lawful. Only so-called “true threats” made against particular individuals or groups, “with the intent of placing the victim in fear of bodily harm or death” can be unlawful in the United States. The Supreme Court would likely call Lake’s rant “political hyperbole,” which it distinguished from true threats in the 1967 case of Watts v United States. Then, the Court realized that 18-year-old Robert Watts hadn’t made a true threat when he said at an antiwar rally in 1966, soon after he was summoned by the draft board, that “if they make me carry a rifle,” he wanted to get President Lyndon B. Johnson in its sights. Watts clearly had no plan to shoot LBJ.

And surely Kari Lake doesn’t really intend to open fire on behalf of Trump. A staggering number of Americans wouldn’t be surprised if she did, though, nor would they oppose it. To them, the rhetoric of Biggs, Higgins, and Lake is not hyperbole. They take it literally, as the January 6 rioters did.

“Support for political violence is no longer only an extremist’s position,” wrote Dr. Garen J. Wintemute, the emergency medicine physician who directs the Violence Prevention Research Program (VPRP) at UC Davis Medical Center in 2021, noting “sustained upward trends” in gun purchasing, violence, and political extremism in the United States. In a representative survey of U.S. adults last year, the VPRP found that more than 20% considered political violence to be “in general at least somewhat justified.” For many of those, violence is justified by their belief in a string of frightening lies: that Donald Trump won the last election, that President Biden ordered the unjust prosecution of his rival, that the U.S. government is out to get not only Trump but his followers.

It’s vital for influential Americans – and everyone else – to publicly correct those dangerous lies and others circulating in our body politic. The deliberate gap left by our national law imposes a civic obligation to practice the only peaceful alternative to criminalizing speech that leads to violence: publicly repudiating it. That responsibility falls most heavily and urgently on those who have the best chance of undermining dangerous disinformation: people who are admired by those who believe it, including (but not limited to) Republican candidates and officials, conservative Christian leaders, retired military officers, and well-known sports figures.

Most of those people have been deafeningly silent since Trump began his long campaign to steal the 2022 election, and since he was twice indicted. Among Republicans, only a small handful have spoken out, so few that they are easily dismissed by the majority and by Republican leaders, and their political careers destroyed, which discourages others from following their example. As long as this continues, bellicose, false rhetoric will become more and more acceptable in mainstream American civic discourse, and mass violence will become more and more likely.