Can GOP Politicians Like Trump Be Punished for “Inciting Violence”? Probably Not

Whatever else comes of the surprise resurrection last week of the Clinton email saga, it’s reinforced the notion among people suspicious of her that Clinton is a corrupt criminal who cannot be trusted.

That doesn’t bode well for her presidency, assuming she rides this out and wins next week. So far, that still looks probable: The New York Times says Clinton’s chances of winning are close to 85 percent, while FiveThirtyEight puts it around 65 percent, give or take a couple of percentage points. But her likelihood of coming out ahead on Nov. 8, coupled with further investigation by the F.B.I., won’t do much to dissuade a dismaying number of Americans—41 percent, according to Politico—who have internalized the Trump campaign’s cynical and self-serving claims that the election is rigged in favor of Clinton.

It’s not such a stretch to connect that paranoid mindset to the flood of super-heated rhetoric flowing from the right, which both created and heartily subscribes to the premise that Clinton is crooked, rather than a flawed politician with a long record of questionable judgment and a self-sabotaging penchant for secrecy. A handful of Republicans in the U.S. Senate have already declared they will oppose any Clinton nomination to replace Antonin Scalia on the Supreme Court. Joe Walsh, a radio host and former congressman, announced that he’s “grabbing my musket” if Trump loses, and called for “civil disobedience on the right.” And The New York Times had no trouble finding Trump supporters who think a Clinton victory will mean violent conflict—“another Revolutionary War,” as one put it.

If there is anti-Clinton violence, to what extent will bombast from Gadsden-flag-wavers have helped inspire it? Turns out that question is trickier than it seems. Talk of taking up muskets, or announcing that it’s “pitchforks and torches time” (in the words of David A. Clarke Jr., the sheriff of Milwaukee County, Wisconsin), is definitely provocative. But absent any specific intent “directed to inciting or producing imminent lawless action” or “likely to incite or produce such action,” it’s just talk, according to Brandenburg v. Ohio, a 1969 case in which the Supreme Court ruled that that government cannot otherwise punish inflammatory speech.

In other words, “Talking about it and doing it are two different things,” says Geoffrey R. Stone, a professor at the University of Chicago Law School and an editor of the journal Supreme Court Review.

That’s basically a philosophical underpinning of the alt-right, that hazily defined collection of right-wing ideologies that variously embrace white nationalism and scorn political correctness, feminism, multiculturalism, immigration—the list goes on. Fittingly for people who delight in spraying alt-right vitriol around online, Clarence Brandenburg was a Ku Klux Klan leader in rural Ohio. He was fined and sentenced to prison after being filmed at a Klan rally talking about the possibility of “revengeance” if the president, Congress and the Supreme Court “continues to suppress the white, Caucasian race.” Sounds familiar.

Because Brandenburg merely raised the idea of “revengeance,” without advocating for any particular action at a specific time or place, the Supreme Court essentially ruled that he was all talk, and therefore not subject to punishment. If the internet has taught us anything, it’s that the web is full of people who are all talk—and they’re free to say things that are hateful, if not outright hate speech. And they do. “One of the unifying marks of the alt-right sensibility is the assumption that no speech act is beyond the pale,” Andrew Marantz wrote in a New Yorker story about the alt-right provocateur Mike Cernovich.

Thus the tide of gleeful unsubstantiated rumors and misinformation about everything from Clinton’s health to voter fraud to the dubious reliability of political polls (apparently they’re a liberal-media fantasy except when they show Trump ahead, in which case they’re totally accurate). Trump himself is an excellent example, given his Twitter feed full of insults, insinuations and outright falsehood. Irresponsible? Sure, and bad for democracy, too. But it’s all fair game, as long as no one is inciting “imminent lawless action.”

And even if they are, “it’s so difficult to enforce that,” says Mark T. Gould, a law professor who teaches on the First Amendment at Quinnipiac University in Connecticut. “What’s imminent? If one of these public figures says something like that, or tweets something to try to rally their followers on Oct. 17, and on Oct. 28 someone says, ‘Well, they said this and now I’m doing it,’ is that imminent?”

With no real fear of legal repercussions, and such success in portraying a potential Clinton victory as tainted and illegitimate, alt-right proponents have little reason to rein in their invective after the election, given the chance to dog a Clinton presidency by setting more fires her administration would have to spend time snuffing out. By the same token, they won’t go away if Trump wins, either. As former Tea Party darlings like Speaker of the House Paul Ryan and Florida Senator Marco Rubio have learned, their base is fickle and prone to abrupt changes of heart. Imagine their reaction once it becomes clear that President Trump is mostly looking out for his own interests.

Worse for them, Trump wants to broaden libel laws to make it easier to sue news organizations, which is how commentators like Cernovich already think of themselves. Given that much of the alt-right’s output is false, with a degree of actual malice—the Supreme Court’s standard for determining libel—how well will they fare if the regime succeeds in loosening that definition to crack down on criticism and dissent? It’s ironic, to say the least, that a Clinton victory represents the alt-right’s best chance to continue its incendiary rabblerousing, at least some of which seems to involve brand-building—or maybe it’s just coincidence that the pinned tweets of both Cernovich and Clarke, among others, include links to projects they’re hawking. They’d surely be loathe to admit it, but Hillary is good for business. Just as Fox News found early success by positioning itself in opposition to President Bill Clinton, the alt-right stands to benefit most from the election of his wife. When the alternative is Donald Trump, so do the rest of us.