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I understand that freedom of speech laws in the US are stricter than in the UK and Europe, but I understand that there are still restrictions (eg [Holmes wrote, "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic" (schenck v. united states,249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470 1919]).)

This link also talks about inciting to violence. It seems clear that Donald Trump has done this in some of his rallies, with the predictable result that violence has ensued. But I have not heard of anyone laying charges of this nature against him. Is there a reason for this? Are candidates somehow protected? Or is this kind of thing protected by freedom of speech laws?

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Political speech is at the core of First Amendment protections on free speech, but there are still legal limits that exist on political speech. (I respectfully disagree with the idea posited by user6726's good answer that political speech is immune from legal restraint.)

Direct incitement to imminent lawless action that is likely to occur can technically be prohibited and people can be arrested for it, but the segments I've seen of the most pro-violence of Donald Trump's rallies have not quite risen to that standard.

He has been couching his incitement-related language carefully; it sounds much tougher than it actually is. "I will pay to defend you if you commit a crime" or even an approving "back in the day, you used to get a punch in the face for X" is not the same as saying "Punch those people in the face on your way out" or "Let's knock those protestors out of here in 3, 2, 1... GO!"

While I'm not saying that a pre-crime promise to cover legal fees can never be enough to rise to the level of conspiracy (that's an interesting question), it also isn't really incitement to riot.

But If Donald Trump, or anyone else, used their political position to speak at a public event and directly incite a riot, then they could be arrested under an applicable law without violating the First Amendment.

There are also other limits on political speech, such as defamation. While a political speaker has incredibly wide leeway, there are still limits that exist, especially if the speaker targets a private citizen rather than another political figure.

  • Great answer also. It sounds like it's a question of degree, and that Trump has been very close to the limit. Given politics, it's surprising to me that someone hasn't convinced one of the victims to lay a claim. Isn't that all it would take to get a hearing going? Or have I again missed something? – Dr Xorile May 9 '16 at 15:42
  • Someone could sue him for defamation or another civil tort, but criminal proceedings usually have to be started by a police officer or prosecutor, and they often have very wide discretion about whether to pursue a case--in a case like this, the decision might be made by the most senior person who is not actively trying to keep it off their own desk. – Tom May 9 '16 at 17:02
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I would say that the initial premise "that freedom of speech laws in the US are stricter than in the UK and Europe" is incorrect. Rather, there are stricter laws restricting speech in the UK and Europe. The essence of the First Amendment, recognising that people should have freedom of speech, is that government should make no law abridging the freedom of speech. In other words, under the US legal system, we don't have any laws that strictly require freedom of speech: we have a dearth of laws that restrict what one may say.

The law on political restrictions on viewpoint have evolved: a brief synopsis is here. See especially Brandenburg v. Ohio 395 U.S. 444. Basically, offensive political rhetoric no matter which side it is on does not actually constitute the kind of impassioned urging to violence that SCOTUS envisioned in the past as incitement to violence, and none of the proffered utterances constitute incitement. It is clear that if I quietly say to some guy "You should kill Smith: you would be $10,000 richer for it if you do", then I would have committed a crime. Such words are not just political rhetoric, unlike Trump's speech. And this is not the appropriate place to be inquiring into political rhetoric.

Basically, political speech is immune from legal restraint. There are or were (in the last 10 years) a few passive remnant laws prohibiting the advocacy of the violent overthrow of the government, imposed at the state level and only w.r.t. state-funded jobs. I would bet money that nobody in the US has been convicted for political rhetoric on the premise that it constitutes "incitement" for a couple of decades. You don't have to be a candidate, you just have to be making a political statement. The underlying reason is two-fold. The primary reason is that the courts increasingly recognize that people can actually exhibit restraint and not start killing at random when some orator declares "you should kill". The second is that actual incitement has to be credible, and not dismissable as bloviation.

  • Great answer. But here we're not talking about murder. We're talking about assault. I haven't seen any developed country's presidential candidate essentially suggest you rough someone up before. If the people in the crowd could be accused of assault, then surely the person at the front who suggested it is also culpable? – Dr Xorile May 9 '16 at 6:32
  • "Nobody has been convicted" - At least no white billionaire. – gnasher729 May 9 '16 at 7:59
  • @gnasher729, seriously, if you know of anyone at all who has been convicted of instigation in the US since, say, the 70's, please give us the citation. It would be useful for understanding exactly where the limits are. – user6726 May 9 '16 at 14:54

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