Incitement, Like Beauty, Is In The Eye Of The Beholder

by Emmanuel S. Tipon, Esq.

Beauty is in the eye of the beholder,” Margaret Wolfe Hungerford wrote, summarizing Plato.

“Every 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’s 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.” Dissenting Opinion by Justice Holmes in Gitlow v. New York, 268 U.S. 652 (1925)

“A 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.” Towne v. Eisner, 245 U.S. 418 (1918) Opinion by Justice Holmes.

Impeachment Charges Against President Trump
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 “engaged in high Crimes and Misdemeanors by inciting violence against the Government of the United States”

He “addressed a crowd at the Ellipse in Washington, DC. There, he reiterated false claims that ‘‘we won this election, and we won it by a landslide.” He also willfully made statements that, in context, encouraged—and foreseeably resulted in—lawless action at the Capitol, such as: “if you don’t fight like hell you’re not going to have a country anymore.”

“Thus incited by President Trump, members of the crowd he had addressed, in an attempt to, among other objectives, interfere with the Joint Session’s 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.”
Incitement of Insurrection Is A Federal Criminal Offense
The United States Code provides:  “Whoever 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.” 18 U.S. Code § 2383.

The term “incite” an “insurrection” is not defined in the U.S. Code. However, the term “incite a riot” is. It could provide an insight as to what constitutes “incite”. The Code states that “to incite a riot”, or “to organize, promote, encourage, participate in, or carry on a riot”, includes, but is not limited to, urging or instigating other persons to riot, 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.”  U.S. Code § 2102(b).

When you do a Google search, incitement means “the action of provoking unlawful behavior or urging someone to behave unlawfully.”

The term “insurrection” means a “rebellion of citizens or subjects of a country against its government.

Elements of Incitement of Insurrection
The elements of incitement of insurrection are:

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

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

“Our 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, “I want to thank you very much,” and they go off to some other life, but I said, “Something’s wrong here. Something’s really wrong. Can’t have happened.” And we fight. We fight like Hell and if you don’t fight like Hell, you’re not going to have a country anymore.”

“We’re going walk down to the Capitol, and we’re going to cheer on our brave senators, and congressmen and women. We’re probably not going to be cheering so much for some of them because you’ll never take back our country with weakness. You have to show strength, and you have to be strong.

“We 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 and patriotically make your voices heard.”

I saw on television President Trump delivering that speech. The above transcript faithfully records what he said.

Did Trump’s Words ‘Incite” A Person to Commit “Insurrection”?
It does not appear that President Trump had a criminal intent to “incite” an “insurrection.”

It is not apparent that he “incited” other persons to commit “insurrection.” Are you “incited” to commit insurrection by President Trump saying, “if you don’t fight like hell, you’re not going to have a country anymore.” Excited? Maybe. As for me, it takes more than words to get me excited.

The Articles of Impeachment took President Trump’s words out of context. It did not allege that President Trump said in the same breath as “fight” that “everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”

Why did not the Articles allege that? Because the words “peacefully” negate “incitement.” A person cannot “incite” another to commit insurrection “peacefully.”

President Trump’s words “had no chance of starting a present conflagration.” See Dissenting Opinion by Justice Holmes in Gitlow v. New York, 268 U.S. 652 (1925).

“[T]he character of every act depends upon the circumstances in which it is done.  The 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.” Schenck v. United States, 249 U.S. 47 (1919).

“[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.”  “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’s words did not “create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent” nor did they have the effect of “inciting or producing imminent lawless action and is likely to incite or produce such action.” 

ATTY. EMMANUEL S. TIPON 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.” 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.  Atty. Tipon was born in Laoag City, Philippines. Tel. (808) 800-7856. Cell Phone (808) 225-2645.  E-Mail: Websites: ,

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.

Leave a Reply

Your email address will not be published.

This site uses Akismet to reduce spam. Learn how your comment data is processed.