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I would like to take an opportunity to make an observation about the attack on the US Capitol on 6 January. I honestly never thought that I would witness such an event and I believe that the word “insurrection” aptly describes happened. I also believe that President Trump was responsible for the chaos and violence and have been disturbed by the defenses of his behavior that have been articulated by some who support him.

I keep hearing that the President never said anything about being violent after he encouraged the crowd to march to the Capitol. Indeed, some have stated that his speech to the crowd was speech protected by the 1st Amendment. Noah Feldman, writing for Bloomberg, gives a nice summary of the current legal interpretations of what constitutes free speech:

“They [Trump defenders] are going to make that argument again. And this time, they will also be able to wrap themselves in the patriotic flag of the First Amendment. Specifically, they are going to rely on an iconic 1969 free-speech decision by the Supreme Court, Brandenburg v. Ohio.

“The Brandenburg case reframed the law of incitement, extending the protection of the First Amendment beyond where it had been before. As late as the notorious 1951 case of Dennis v. United States, the court was still using a version of the “clear and present danger” test first devised by Justice Oliver Wendell Holmes in 1920. In the Dennis case, that standard was interpreted to allow conviction of nearly a dozen leaders of the Communist Party USA for sedition.

“By 1969, free-speech advocates and scholars had come to see the Dennis approach as out of step with contemporary values of political self-expression. In the Brandenburg case, the court said that the government can’t outlaw or punish ‘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 Brandenburg rule thus has two components. The first is that the speech is ‘directed’ to inciting imminent lawlessness. The second is that the speech is actually likely to achieve its result.

The distinctions made by Feldman are useful for legal scholars, but I do not think that it is necessary to go into that level of detail. Just a cursory reading of President Trump’s speech to the protesters on 6 January leads me to the conclusion that the speech was critical for the transformation of a crowd of protesters to a crowd of insurrectionists who then used violence to express their opinions. Moreover, the 1st Amendment is constructed to prevent the government from infringing upon the right of speech for private citizens. I am not sure that we should consider the President as simply a private citizen–a remarkably low bar for an institution that carries with it incredible authority and power (something that apparently has never been understood by Mr. Trump). Surely we should have a different expectations for the desired conduct of the President.

I have little patience for those who defend Mr. Trump because he never said words such as “go and trash the Capitol building”. That defense is one that could be applied to a private citizen, but when applied to the President is disingenuous and insulting.