Your #1 is wrong
by StetsonDan (2024-02-02 09:04:43)
Edited on 2024-02-02 09:15:23

In reply to: I watched it as well. Very complete and educational. I  posted by eriendfan


The First Amendment does allow you to yell "Fire!" in a crowded theater. The 1919 Schenk case in which Justice Holmes gives that example was overruled by the 1969 Brandenburg case.

If you want more information about this, feel welcome to read: this Atlantic article, this Reason article, or this transcript of an interview with Ken White, a 1st Amendment lawyer.

Edit: More importantly, Trump's speech in the lead up to January 6th would be considered constitutionally protected unless it fit one of these categories:
1. True threat: Trump would have had to express an intent to commit unlawful violence to a particular person or group of persons.
2. Incitement of immediate lawless activity: Trump's speech would have to have been “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” I think this is debatable to the extent that a conviction for his speech on January 6th would almost certainly become a landmark Supreme Court first amendment case.