Commentary

SCOTUS Has Been Clear on What Is and Is Not Incitement to Violence

By Bill Donohue | January 11, 2021 | 2:56pm EST
Featured is the Supreme Court in Washington, D.C. (Photo credit: DANIEL SLIM/AFP via Getty Images)
Featured is the Supreme Court in Washington, D.C. (Photo credit: DANIEL SLIM/AFP via Getty Images)

The censoring of Parler by Amazon, Google, and Apple is the most serious assault on freedom of speech we have ever seen by private companies in American history. Instead of addressing those who are responsible for abusing their free speech rights, e.g. those who are clearly fomenting violence, Big Tech is now seeking to censor conservative voices in general. 

For justification, they are following the lead of pundits and activists who are blaming President Trump and his supporters for the violence that took place last week in Washington, D.C. The argument is more than absurd—it is pernicious.

Nothing President Trump said last week was in any way an incitement to violence. Indeed, it was protected speech under the First Amendment. The U.S. Supreme Court has been very clear about its rulings on this matter.

In 1946, Father Arthur Terminiello, a suspended priest, made an incendiary speech in Chicago wherein he attacked Jews and President Franklin Roosevelt. He not only got the crowd in the auditorium all jacked up; he stoked the passions of his foes who were outside the building. They rioted and he was arrested for breaching the peace.

Terminiello appealed to the Illinois courts, but lost. In 1949, the U.S. Supreme Court overturned the lower court rulings. The justices knew that if overheated rhetoric could be subjected to sanctions because it inflamed those who objected, robust free speech would be squashed: All it would take is the threat of a riot to censor objectionable speech. In other words, those who riot are to blame for their behavior, not the speaker whom they loathe. 

In 1964, Clarence Brandenburg, a Ku Klux Klan officer, made racist and anti-Semitic remarks at a meeting in Cincinnati. He was arrested for urging his followers to seek revenge against blacks and Jews. The U.S. Supreme Court threw out his conviction on free speech grounds. He could only be sanctioned, the high court reasoned, if it could be shown that he deliberately incited lawlessness, and that the threat was imminent. 

In rendering this decision, the Supreme Court applied the "clear and present danger" test that it devised in Schneck v. United States in 1919. Justice Oliver Wendell Holmes wrote that "The question in every case is whether the words used are used in such circumstances and are of such a nature to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." This is the origin of the famous fire in a crowded theater argument: Free speech does not give one the right to falsely scream "fire" in a crowded theater.

What Trump said to his followers last week cannot, by these constitutional standards, be construed as an incitement to violence. Never once did he call for violence or an invasion of the Capitol. In fact, the rioters began to crash police barricades while he was still speaking. So much for the "clear and present danger" argument. Moreover, the NYPD and the FBI warned the Capitol Police before Jan. 6 of impending threats, thus making foolish the charge that Trump incited the mob to violence. 

The danger to free speech extends beyond the machinations of Big Tech and the contrived charges of incitement against Trump. Wildly irresponsible accusations have been made by many people who should know better. Comparing Trump to Nazi propagandist Joseph Goebbels, as our next president did, was scurrilous. Comparing Trump supporters to Nazis, as the Jewish Democratic Council for America did, was equally outrageous. Fortunately, many responsible Jews condemned both of these charges. 

The indefensible storming of the Capitol is being exploited by those on the left to indict Christians. 

The Atlantic called what happened "a Christian insurrection" and Religion News Service labeled it the work of "Christian nationalists." Americans United for Separation of Church and State blamed "white Christian Nationalists," as did Patheos. Sister Simone Campbell, who thinks abortion should be legal in every instance, noted this was a "white supremacist effort," and America, the Jesuit publication, saw the imprint of white people all over the riot. None of these people consider themselves to be bigots. 

Not to be outdone, the National Catholic Reporter, which rejects many teachings of the Catholic Church (yet still pretends to be Catholic), singled out several Catholics, including me, for having "blood on their hands." Why? Because we have previously touted Trump's policies. That would make 74 million Americans guilty of "blood on their hands." This proves how delirious these extremists have become, making them prime candidates for the asylum.

One does not have to agree with Trump's decisions last week to know that he never incited a riot. Worse, to brand his supporters Nazis, or to claim they have "blood on their hands," shows how unhinged many of his critics have become. They are a true menace to democracy: they are using Trump as a pretext to stifle the free speech of decent Americans. 

Bill Donohue is president and CEO of the Catholic League for Religious and Civil Rights, the nation's largest Catholic civil rights organization. He was awarded his Ph.D. in sociology from New York University and is the author of eight books and many articles.

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