The Capitol rioters were quick to pin the blame on their beloved President and claim that his words had summoned them to their actions. Yet seeing as Trump's impeachment trial for inciting insurrection came down to the debate of Intent versus Interpretation, it seems like the rioters may be pointing fingers with dirty hands of their own. This lack of responsibility demonstrates a deep problem with the current account of what constitutes incitement to violence. It also has dubious implications for the legal status of citizens, contingent on their right to free expression.
Citizens have legal status, with respect to their governments, which grants an expectation of the way their government may treat them. The liberal ethos in Western political and legal structures bases rights upon negative freedoms - when a citizen is free to act without any constraints until their actions harm another citizen - and follow the normative application of Mill’s "harm principle" which states that "the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others". Living in a democratic Western country allows citizens to enjoy a democratic legal status, granting the expectation that their rights are premised on negative freedoms.
Integral to democratic status is freedom of expression. However, as with all rights, there are (and should be) certain restrictions to free expression, such as when the expression has the potential to harm someone. One of the ways speech can harm another citizen is when it incites violence. Whilst it may be intuitive, this constraint comes with two problems. The first is subjectivity when it comes to assessing harm. The second is determining personal responsibility: who is to blame, the speaker or the listener?
Typically, the conversation about speech regulation revolves more around the subjectivity of harm, and the consequential difficulty of universalising legislation. What makes Trump’s case particularly interesting is that the harm from his speech was not subjective as it led to the direct consequence of pro-Trump rioters storming the Capitol. If subjective harm was the main issue with speech regulation, then this should have been a clear-cut case in which Trump incited violence.
Yet the case is far from clear-cut. The question of responsibility has not had much air time, leaving the determination of blame in a grey area: where does Trump’s responsibility as the speaker end, and the responsibility of the rioting citizens as listeners begin?
Definitions of incitement to violence in the United States seem to revolve around the consequence of speech. For example, one definition reads, “the urging of listener(s) to engage in harmful acts or pose an imminent threat to a person”. However, this offers little clarity on what constitutes such speech. If the listener misinterprets something communicated by the speaker, can the speaker really be blamed? Locating the boundary between expressing opinion and incitement creates a liminal space that must be targeted if the law is to preserve the legal status of the citizens.
It is difficult to define what constitutes incitement because the effects of speech are dependent on both the speaker and the listener. When physical harm is committed, such as murder, theft, or physical abuse, locating a sole perpetrator is much easier. Incitement is more ambiguous: unless there is a clear form of coercion, it is the listener’s own prerogative to act upon the speaker’s words.
This simply regresses the problem: what is the definition of a clear form of coercion? The closest objective gauge of incitement to violence is the Brandenburg Test which states that in order to convict someone of incitement to violence there must be a clear indication of an imminent threat towards a person. However, this again does not address the arbitrariness of responsibility but simply focuses on the consequences of the speaker’s rhetoric.
Whilst Trump’s speech has been ruled to pass the Brandenburg Test, there are many who disagree with the decision, suggesting the test is inadequate. For example, the Brandenburg Test would not take into account Trump’s position of power and the citizen’s natural trust in him as a leader, meaning they are more likely to act on his words. Furthermore, whilst the rhetoric used by Trump in itself does not constitute incitement, the inflammatory context in which it was said adds extra weight. For example, the word "fire" is not in itself an incitement to action unless it is yelled in a crowded theatre.
There is also the further question of whether these factors should be Trump’s responsibility. As far as his defence was concerned, the rhetoric of Trump’s speech is typical of political speeches. Furthermore, Trump’s assertion of election fraud was simply stating his opinion. The context of the polarised political environment prone to emotional reactions is speculative, and the level of trust between him and the citizens are of the citizen’s own prerogative. Therefore, there is no obvious argument that Trump should be held responsible.
Determining blame is thus not a straightforward endeavour. Trump’s case shows that there needs to be a more coherent system that determines the point at which the speaker is responsible for the actions of the listener. Without clear parameters indicating the point at which expression becomes incitement, citizens are in murky territory when it comes to exercising their freedom of expression. Liberal doctrines affirm that the right to swing one’s fist ends at the tip of another’s nose, but how would citizens know when to stop their fist if they do not know where the nose begins?