A lawyer for former President Donald Trump argued in his civil trial for inciting the January 6 insurrection that Trump’s speech to his followers before the riot was protected free speech. When asked by the judge if Trump were immune to inciting a riot and failing to stop it, the lawyer Jesse Binnall said he could not be subject to judicial action because he “failed to do something.” (Business Insider, January 10, 2022, by Sonam Sheth and C. Ryan Barber)
Law professor Catherine J. Ross, The Hill, January 17, 2022, argues that the Trump lawyer argument that as president Trump enjoyed “enhanced” free speech rights was disjointed in that the First Amendment addresses government power to regulate speech. “The speech clause exists in large part to protect dissidents, the disempowered and those who speak truth to power,” writes Ross. “The powerful need no special protection.”
Jacob Sullum in Reason, January 12, 2022, says that the plaintiffs in the civil suit must show more than reckless rhetoric to prove their case. Using the Ku Klux Klan Act of 1871, they must show Trump conspired “to use threats, force, and intimidation to stop government officials from carrying out their duties.” Showing that Trump stoked the violence would not be enough; they would have to show the riot was part of a plan to violently disrupt the ratification of the 2020 presidential vote and that Trump was a key player.
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