Constitutional Law
Feb. 17, 2021
Incitement: A history of speech promoting illegal activity
Although the outcome of the impeachment trial in the Senate was preordained in that it was certain that there would not be a two-thirds vote to convict Donald Trump, the underlying legal issue is difficult and important: Did President Trump's speech constitute incitement to violence?
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law
UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
Although the outcome of the impeachment trial in the Senate was preordained in that it was certain that there would not be a two-thirds vote to convict Donald Trump, the underlying legal issue is difficult and important: Did President Trump's speech constitute incitement to violence? The history of incitement in the U.S. Supreme Court provides a basis for caution, but also supports the conclusion that Trump's words were not protected by the First Amendment.
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