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15 U. St. Thomas J.L. & Pub. Pol'y 483 (2021-2022)
Capitol Offense: Is Donald Trump Guilty of Inciting a Riot at the Capitol?

handle is hein.journals/tjlpp15 and id is 485 raw text is: CAPITOL OFFENSE: IS DONALD TRUMP GUILTY OF INCITING A RIOT AT THE CAPITOL? MICHAEL CONKLIN* It is not an easy task to find that speech rises to such a dangerous level that it can be deemed incitement to riot. i I. ABSTRACT On January 6, 2021, President Trump's incendiary speech at the Save America Rally was immediately followed by a riot on the Capitol Building. In the aftermath, Trump was banned from Twitter and impeached a second time. Some are even calling for criminal prosecution for Trump's role in inciting the Capitol riot. This article examines the likely outcome of such criminal proceedings using the applicable Brandenburg three-prong test.2 The article further addresses a number of unique factors that would affect the application of the Brandenburg test: (1) the results of a 2018 civil case against Trump for incitement, (2) the objectively false nature of Trump's speech, (3) Trump's response to the Capitol riot, (4) Trump's position of authority and the loyalty of his ardent followers, and (5) the Supreme Court's hesitancy to punish a president for political speech. II. INTRODUCTION On January 6, 2021, President Trump spoke at the Save America Rally where he encouraged participants to fight like Hell, stop the steal, never concede, and walk down to the Capitol.3 Rudy Giuliani and Donald Trump Jr. also spoke at the rally, the former demanding trial by combat and the latter stating, we're coming for * Powell Endowed Professor of Business Law, Angelo State University. 1 Bible Believers v. Wayne Cty., 805 F.3d 228, 244 (6th Cir. 2015). 2 Brandenburg v. Ohio, 395 U.S. 444, 448 (1969). 3 Donald Trump Speech Save America Rally Transcript January 6, REV (Jan. 6, 2021), https://www.rev.com/blog/transcripts/donald-trump-speech-save-america- rally-transcript-january-6.

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