Former President Donald Trump’s “thuggish” tirades on Truth Social about the Manhattan district attorney investigating him are probably First Amendment-protected, legal experts explain.
When he wrongly predicted his arrest this past Tuesday, Trump called, in all capital letters, for his supporters to “protest” and “Take our nation back!” Some commentators saw similarities between that social media post and ones that preceded the Jan. 6th attack on the U.S. Capitol. Two federal judges have since found that Trump’s speech before those riots may have amounted to incitement, advancing two lawsuits seeking to hold him liable.
Trump has only ratcheted up his rhetoric since then.
In one post, Trump shared a link to a far-right website that juxtaposed a picture of him wielding a baseball bat next to Manhattan District Attorney Alvin Bragg (D). He followed up that post with another post-midnight missive at 1:08 a.m. ET, warning of “potential death & destruction” if he’s indicted.
Trump’s incendiary rants sparked online speculation over the possible consequences, from criminal prosecution to immediate remand to jail, if indicted.
First Amendment experts advise anticipating consequences on the milder side of the spectrum.
“While this is obnoxious, none of it meets the Brandenburg test for incitement, nor is it a true threat,” explained attorney Ken White, better known by his legal nom de plume Popehat. “It’s just, you know, colossally crude and thuggish.”
In the case of Brandenburg v. Ohio, the Supreme Court instructed that speech only rises to the level of incitement if it can cause “imminent lawless action.” Federal judges found that Trump arguably crossed this line before the Jan. 6th attack, by falsely leading his supporters to believe the election had been stolen, inviting them to a “wild” protest in Washington, D.C., and instructing them to descend upon the Capitol after his rally.
Several lawsuits seeking to hold Trump liable for the violence and destruction on Jan. 6 will have to overcome his First Amendment defense, and special counsel Jack Smith’s criminal investigation into the Capitol siege may contend with that issue, too.
White, however, noted that there’s a key difference between Trump’s actions before Jan. 6th and those preceding his possible indictment, from a legal standpoint: Trump’s physical presence.
“He was talking to a crowd that was walking distance to Congress,” White said. “So there’s a close connection to time and place, and much more plausibly meets the ‘imminent lawlessness’ aspect. It’s much tougher with something on Truth Social.”
White predicted the law’s understanding of “imminence” may evolve in a post-Trump age.
“I don’t think you can discount the possibility that we’re going to move to a different understanding of what ‘imminence’ is when we’re talking about someone with a huge online voice,” White said. “Right now, I don’t think it meets the standard. It’s not outside the realm of possibility that the standard could shift as we understand that someone like Donald Trump can talk to tens of millions of people online and get someone to do something relatively soon in a way that we may decide is ‘imminent’ and not a true threat.”
A true threat, he noted, would refer to an action referring to what Trump would do, a possibility not at issue in the posts.
Former federal prosecutor Mitchell Epner, who practices media law as a partner of Rottenberg Lipman Rich PC, agreed that the posts do not currently vault the Brandenburg bar — but, he added, “reasonable minds can vary.”
Both White and Epner believed that such posts could cause a judge to impose a gag order on Trump if a grand jury does indict him. White cited the case of Trump ally Roger Stone as a precedent.
“It’s not very common, but when someone has a voice so loud and so intemperate that they do things that may taint the jury pool, then occasionally you’ll see that,” White said.
In 2019, Stone was gagged after posting an Instagram image of U.S. District Judge Amy Berman Jackson with apparent crosshairs next to her head and labeling Robert Mueller a “Deep State hitman.”
If Trump were charged, then gagged, and then violated that order, White said that he could imagine — in that hypothetical — the former president facing bail consequences.
“Judge would probably escalate before denying bail though,” White added. “This is not a high-bail case.”
A Manhattan grand jury is reportedly looking into whether Trump falsified business records in directing and reimbursing hush-money payments to Stormy Daniels. Though a misdemeanor offense, such a charge could be elevated to a felony if prosecutors prove it was committed with an intent to defraud in the commission of another crime.
Given the nature of the investigation and the target, Epner seemed even more skeptical that Trump would be sent to jail over a gag order.
“If he were indicted, a gag order could be imposed,” he noted. “There are First Amendment issues with such orders. In addition, I cannot imagine a world where the Court revokes bail if Trump trespasses the order.”
He doubted that a Manhattan judge would send a former president to Rikers before a trial, noting that would be a momentous course of action even after a conviction.
Have a tip we should know? [email protected]