{"id":5883,"date":"2021-01-23T07:33:14","date_gmt":"2021-01-23T17:33:14","guid":{"rendered":"http:\/\/thefilipinochronicle.com\/backup\/?p=5883"},"modified":"2021-01-26T02:56:44","modified_gmt":"2021-01-26T12:56:44","slug":"incitement-like-beauty-is-in-the-eye-of-the-beholder","status":"publish","type":"post","link":"http:\/\/thefilipinochronicle.com\/backup\/2021\/01\/23\/incitement-like-beauty-is-in-the-eye-of-the-beholder\/","title":{"rendered":"Incitement, Like Beauty, Is In The Eye Of The Beholder"},"content":{"rendered":"\n
\"\"<\/figure><\/div>\n\n\n\n

by Emmanuel S. Tipon, Esq.

<\/em>\u201cBeauty is in the eye of the beholder<\/em>,\u201d Margaret Wolfe Hungerford wrote, summarizing Plato.

<\/em>\u201cEvery idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it, or some failure of energy stifles the movement at its birth.  The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker\u2019s enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us it had no chance of starting a present conflagration.\u201d <\/em>Dissenting Opinion by Justice Holmes in Gitlow v. New York, 268 U.S. 652 (1925)

<\/em>\u201cA word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and time in which it is used.\u201d<\/em> Towne v. Eisner, 245 U.S. 418 (1918) Opinion by Justice Holmes.

<\/em>Impeachment Charges Against President Trump<\/strong>
<\/em>On Jan. 13, 2021, the House of Representatives approved a Resolution Impeaching Donald John Trump, President of the United States, alleging that Donald John Trump \u201cengaged in high Crimes and Misdemeanors by inciting violence against the Government of the United States\u201d

<\/em>He \u201caddressed a crowd at the Ellipse in Washington, DC. There, he reiterated false claims that \u2018\u2018we won this election, and we won it by a landslide.\u201d He also willfully made statements that, in context, encouraged\u2014and foreseeably resulted in\u2014lawless action at the Capitol, such as: \u201cif you don\u2019t fight like hell you\u2019re not going to have a country anymore.\u201d

<\/em>\u201cThus incited by President Trump, members of the crowd he had addressed, in an attempt to, among other objectives, interfere with the Joint Session\u2019s solemn constitutional duty to certify the results of the 2020 Presidential election, unlawfully breached and vandalized the Capitol, injured and killed law enforcement personnel, menaced Members of Congress, the Vice President, and Congressional personnel, and engaged in other violent, deadly, destructive, and seditious acts.\u201d
<\/em>Incitement of Insurrection Is A Federal Criminal Offense<\/strong>
<\/em>The United States Code provides:  \u201cWhoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.\u201d 18 U.S. Code \u00a7 2383.

<\/em>The term \u201cincite\u201d an \u201cinsurrection\u201d is not defined in the U.S. Code. However, the term \u201cincite a riot\u201d is. It could provide an insight as to what constitutes \u201cincite\u201d. The Code states that \u201cto incite a riot<\/a>\u201d, or \u201cto organize, promote, encourage, participate in, or carry on a riot<\/a>\u201d, includes, but is not limited to, urging or instigating other persons to riot<\/a>, but shall not be deemed to mean the mere oral or written (1) advocacy of ideas or (2) expression of belief, not involving advocacy of any act or acts of violence or assertion of the rightness of, or the right to commit, any such act or acts.\u201d  U.S. Code \u00a7 2102(b).

<\/em>When you do a Google search, incitement means \u201cthe action of provoking unlawful behavior or urging someone to behave unlawfully.\u201d

The term \u201cinsurrection\u201d means a \u201crebellion of citizens or subjects of a country against its government.<\/a>\u201d

<\/em>Elements of Incitement of Insurrection<\/strong>
<\/em>The elements of incitement of insurrection are:

<\/em>(1) The accused must have a criminal intent to commit the crime of incitement of insurrection.
<\/em>(2) The accused must have urged or instigated other persons.
<\/em>(3) The urging or instigation by the accused must be for the purpose of making the other persons rebel against the government.

<\/em>What Did President Trump Actually Say?<\/strong>
<\/em>President Trump at a Save America rally in Washington, D.C. on January 6, 2021 said<\/a>:

<\/em>\u201cOur brightest days are before us, our greatest achievements still wait. I think one of our great achievements will be election security because nobody until I came along, had any idea how corrupt our elections were. And again, most people would stand there at 9:00 in the evening and say, \u201cI want to thank you very much,\u201d and they go off to some other life, but I said, \u201cSomething\u2019s wrong here. Something\u2019s really wrong. Can\u2019t have happened.\u201d And we fight. We fight<\/em><\/strong> like Hell and if you don\u2019t fight<\/em><\/strong> like Hell, you\u2019re not going to have a country anymore.\u201d

<\/em>\u201cWe\u2019re going walk down to the Capitol, and we\u2019re going to cheer<\/em><\/strong> on our brave senators, and congressmen and women. We\u2019re probably not going to be cheering so much for some of them because you\u2019ll never take back our country with weakness. You have to show strength, and you have to be strong.

<\/em>\u201cWe have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated. I know that everyone here will soon be marching over to the Capitol building to peacefully<\/em><\/strong> and patriotically make your voices heard.\u201d

<\/em>I saw on television President Trump delivering that speech. The above transcript faithfully records what he said. <\/em><\/p>\n\n\n\n

Did Trump\u2019s Words \u2018Incite\u201d A Person to Commit \u201cInsurrection\u201d?
<\/strong>It does not appear that President Trump had a criminal intent to \u201cincite\u201d an \u201cinsurrection.\u201d

It is not apparent that he \u201cincited\u201d other persons to commit \u201cinsurrection.\u201d Are you \u201cincited\u201d to commit insurrection by President Trump saying, \u201cif you don\u2019t fight like hell, you\u2019re not going to have a country anymore.\u201d Excited? Maybe. As for me, it takes more than words to get me excited.

The Articles of Impeachment took President Trump\u2019s words out of context. It did not allege that President Trump said in the same breath as \u201cfight\u201d that \u201ceveryone here will soon be marching over to the Capitol building to peacefully<\/em><\/strong> and patriotically make your voices heard.\u201d

Why did not the Articles allege that? Because the words \u201cpeacefully\u201d negate \u201cincitement.\u201d A person cannot \u201cincite\u201d another to commit insurrection \u201cpeacefully.\u201d

President Trump\u2019s words \u201chad no chance of starting a present conflagration<\/strong>.\u201d<\/em> See Dissenting Opinion by Justice Holmes in Gitlow v. New York, 268 U.S. 652 (1925).

\u201c[T]he character of every act depends upon the circumstances in which it is done. \u00a0The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.*** The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.\u201d Schenck v. United States, 249 U.S. 47 (1919).

\u201c[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.\u201d\u00a0 “the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.” Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).

President Trump\u2019s words did not \u201ccreate a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent\u201d nor did they have the effect of \u201cinciting or producing imminent lawless action and is likely to incite or produce such action.\u201d\u00a0<\/p>\n\n\n\n

\n\n\n\n

ATTY. EMMANUEL S. TIPON<\/strong> was a Fulbright and Smith-Mundt scholar to Yale Law School where he obtained a Master of Laws degree specializing in Constitutional Law. He has a Bachelor of Laws degree from the University of the Philippines. He is admitted to practice before the U.S. Supreme Court, New York, and the Philippines. He practices federal law, with emphasis on immigration law and appellate federal criminal defense. He was the Dean and a Professor of Law of the College of Law, Northwestern University, Philippines. He writes law books and legal articles for Thomson-Reuters and writes columns for newspapers. He wrote the best-seller “Knowing by Knowing Your Election Laws.\u201d Listen to The Tipon Report which he co-hosts with his son Noel, the senior partner of the Bilecki & Tipon Law Firm. It is considered the most witty, interesting, and useful radio show in Hawaii. KNDI 1270 AM band every Thursday at 8:00 a.m.\u00a0 Atty. Tipon was born in Laoag City, Philippines. Tel. (808) 800-7856. Cell Phone (808) 225-2645.\u00a0 E-Mail: filamlaw@yahoo.com. Websites: https:\/\/www.tiponlaw.com<\/a> , https:\/\/www.hawaiianimmigrationattorney.com<\/a><\/em>.

The information provided in this article is not legal advice. Publication of this information is not intended to create, and receipt by you does not constitute, an attorney-client relationship.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

by Emmanuel S. Tipon, Esq. \u201cBeauty is in the eye of the beholder,\u201d Margaret Wolfe…<\/p>\n","protected":false},"author":1,"featured_media":5858,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"spay_email":"","_links_to":"","_links_to_target":""},"categories":[26,28],"tags":[],"featured_image_urls":{"full":["https:\/\/i0.wp.com\/thefilipinochronicle.com\/backup\/wp-content\/uploads\/2021\/01\/whatsupatty-2.jpg?fit=1100%2C550",1100,550,false],"thumbnail":["https:\/\/i0.wp.com\/thefilipinochronicle.com\/backup\/wp-content\/uploads\/2021\/01\/whatsupatty-2.jpg?resize=150%2C150",150,150,true],"medium":["https:\/\/i0.wp.com\/thefilipinochronicle.com\/backup\/wp-content\/uploads\/2021\/01\/whatsupatty-2.jpg?fit=300%2C150",300,150,true],"medium_large":["https:\/\/i0.wp.com\/thefilipinochronicle.com\/backup\/wp-content\/uploads\/2021\/01\/whatsupatty-2.jpg?fit=640%2C320",640,320,true],"large":["https:\/\/i0.wp.com\/thefilipinochronicle.com\/backup\/wp-content\/uploads\/2021\/01\/whatsupatty-2.jpg?fit=640%2C320",640,320,true],"1536x1536":["https:\/\/i0.wp.com\/thefilipinochronicle.com\/backup\/wp-content\/uploads\/2021\/01\/whatsupatty-2.jpg?fit=1100%2C550",1100,550,true],"2048x2048":["https:\/\/i0.wp.com\/thefilipinochronicle.com\/backup\/wp-content\/uploads\/2021\/01\/whatsupatty-2.jpg?fit=1100%2C550",1100,550,true],"ultp_layout_landscape_large":["https:\/\/i0.wp.com\/thefilipinochronicle.com\/backup\/wp-content\/uploads\/2021\/01\/whatsupatty-2.jpg?resize=1100%2C550",1100,550,true],"ultp_layout_landscape":["https:\/\/i0.wp.com\/thefilipinochronicle.com\/backup\/wp-content\/uploads\/2021\/01\/whatsupatty-2.jpg?resize=870%2C550",870,550,true],"ultp_layout_portrait":["https:\/\/i0.wp.com\/thefilipinochronicle.com\/backup\/wp-content\/uploads\/2021\/01\/whatsupatty-2.jpg?resize=600%2C550",600,550,true],"ultp_layout_square":["https:\/\/i0.wp.com\/thefilipinochronicle.com\/backup\/wp-content\/uploads\/2021\/01\/whatsupatty-2.jpg?resize=600%2C550",600,550,true],"covernews-slider-full":["https:\/\/i0.wp.com\/thefilipinochronicle.com\/backup\/wp-content\/uploads\/2021\/01\/whatsupatty-2.jpg?resize=1100%2C550",1100,550,true],"covernews-slider-center":["https:\/\/i0.wp.com\/thefilipinochronicle.com\/backup\/wp-content\/uploads\/2021\/01\/whatsupatty-2.jpg?resize=800%2C470",800,470,true],"covernews-featured":["https:\/\/i0.wp.com\/thefilipinochronicle.com\/backup\/wp-content\/uploads\/2021\/01\/whatsupatty-2.jpg?fit=1024%2C512",1024,512,true],"covernews-medium":["https:\/\/i0.wp.com\/thefilipinochronicle.com\/backup\/wp-content\/uploads\/2021\/01\/whatsupatty-2.jpg?resize=540%2C285",540,285,true],"covernews-medium-square":["https:\/\/i0.wp.com\/thefilipinochronicle.com\/backup\/wp-content\/uploads\/2021\/01\/whatsupatty-2.jpg?resize=375%2C250",375,250,true]},"author_info":{"info":["admin"]},"category_info":"Columns<\/a> What's up, Attorney?<\/a>","tag_info":"What's up, Attorney?","comment_count":"0","jetpack_featured_media_url":"https:\/\/i0.wp.com\/thefilipinochronicle.com\/backup\/wp-content\/uploads\/2021\/01\/whatsupatty-2.jpg?fit=1100%2C550","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"http:\/\/thefilipinochronicle.com\/backup\/wp-json\/wp\/v2\/posts\/5883"}],"collection":[{"href":"http:\/\/thefilipinochronicle.com\/backup\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/thefilipinochronicle.com\/backup\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/thefilipinochronicle.com\/backup\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/thefilipinochronicle.com\/backup\/wp-json\/wp\/v2\/comments?post=5883"}],"version-history":[{"count":1,"href":"http:\/\/thefilipinochronicle.com\/backup\/wp-json\/wp\/v2\/posts\/5883\/revisions"}],"predecessor-version":[{"id":5884,"href":"http:\/\/thefilipinochronicle.com\/backup\/wp-json\/wp\/v2\/posts\/5883\/revisions\/5884"}],"wp:featuredmedia":[{"embeddable":true,"href":"http:\/\/thefilipinochronicle.com\/backup\/wp-json\/wp\/v2\/media\/5858"}],"wp:attachment":[{"href":"http:\/\/thefilipinochronicle.com\/backup\/wp-json\/wp\/v2\/media?parent=5883"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/thefilipinochronicle.com\/backup\/wp-json\/wp\/v2\/categories?post=5883"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/thefilipinochronicle.com\/backup\/wp-json\/wp\/v2\/tags?post=5883"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}