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Has President Trump incited violence?

Judge Andrew P. Napolitano on

All states have laws that prohibit assault and destruction of others' property. States and the federal government also have laws that prohibit bystanders from encouraging others to engage in violence. The latter is known as incitement.

When violence has erupted in American streets between groups supporting President Donald Trump and those opposed to him -- and he encouraged his supporters to be "much tougher" than the other side and to "hit back" -- did his use of intemperate words incite violence?

The use of federal and state incitement laws has a long and sordid history, which nearly always ends with the punishment of those expressing an unpopular viewpoint. From the 1900s to the 1950s, the states and the federal government prosecuted people who did no more than utter words. The prosecutor argued that the words encouraged harm and therefore were a clear and present danger.

Some folks were even prosecuted and convicted for belonging to groups that encouraged violence, though the individual defendants never personally did the encouragement.

These prosecutions -- largely upheld by the Supreme Court -- defied the clear language and plain meaning of the First Amendment. It states that "Congress shall make no law... abridging the freedom of speech."

James Madison, who drafted the Bill of Rights -- the first 10 amendments to the Constitution -- insisted that the article "the" precede "freedom," as in "the freedom of speech" so as to make it manifestly clear that those who proposed and ratified the First Amendment recognized that the freedom of speech preceded the existence of the government.

 

To the signers of the Declaration of Independence and the ratifiers of the Constitution and the Bill of Rights, the freedom of speech, along with other freedoms, is a natural right because it comes of our humanity, not from the government.

I recount this brief history and offer this small philosophical nuance because the freedom of speech is supposed to be a bulwark against prosecutions for speech. Thomas Jefferson once argued that since words neither picked his pocket nor broke his legs, all words are protected.

That was the common understanding of the freedom of speech at the creation of our republic.

Sadly, that understanding gave way to the exercise of raw power and the fear of losing power when Congress, in 1798, during the presidency of John Adams, enacted the Alien and Sedition Acts. One of those acts made it a crime to utter "false, scandalous, or malicious" speech against the government or the president or to utter speech in opposition to the government's efforts to shore up defenses from a war with France that never came about.

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