Topic 7--The U.S. Constitution and Freedom of Speech
Case Study: Freedom of Speech and the January 6th Capitol Attack
Title“Free Speech or Incitement? The Case of January 6th”
A clarification of the ideas contained in the first Amendment to the Constitution focusing on freedom of speech and the January 6th attack on the Capitol.
Essential Question: Was Donald Trump exercising freedom of speech on January 6th or was he inciting a felony-level riot?
Overview
The first Amendment to the Constitution guarantees freedoms relating to religion, expression, assembly, and the right to petition preventing Congress from promoting one religion over others or restricting an individual’s religious practices. It also guarantees freedom of the press and individual speech, and guarantees freedom of assembly if peaceful and the right to petition their government. The actual Amendment reads as follows: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Although the freedoms appear clear, the First Amendment is not absolute, but rather a dictum, which means that it expresses a principle that is given to interpretation, and therefore, may change depending upon the situation as the 1969 Supreme Court’s decision in Brandenburg vs. Ohio demonstrates. The Court protects inflammatory speech, including that promoting violence unless it “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” In their writings, Supreme Court Justices Holmes and Brandeis provided the foundation of decisions relating to freedom of speech in the 60’s and 70’s, and continue to take precedence today.
In his writings, Holmes asserts that combating offensive speech depends on freedom of ideas, stating “The ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.” Thus, more free speech counters offensive speech and all of the speech is Constitutional. The general statutes addressing inciting others to riot reads as follows:
§ 14-288.2. Riot; inciting to riot; punishments.
(a) A riot is a public disturbance involving an assemblage of three or more persons
which by disorderly and violent conduct, or the imminent threat of disorderly and violent
conduct, results in injury or damage to persons or property or creates a clear and present danger of injury or damage to persons or property.
(b) Any person who willfully engages in a riot is guilty of a Class 1 misdemeanor.
(c) Any person who willfully engages in a riot is guilty of a Class H felony, if:
(1) In the course and as a result of the riot there is property damage in excess of
fifteen hundred dollars ($1,500) or serious bodily injury; or
(2) Such participant in the riot has in his possession any dangerous weapon or
substance.
(d) Any person who willfully incites or urges another to engage in a riot, so that as a
result of such inciting or urging a riot occurs or a clear and present danger of a riot is created, is guilty of a Class 1 misdemeanor.
(e) Any person who willfully incites or urges another to engage in a riot, and such
inciting or urging is a contributing cause of a riot in which there is property damage in excess of fifteen hundred dollars ($1,500) or serious bodily injury, shall be punished as a Class F felon. (1969, c. 869, s. 1; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1, c. 179, s. 14; 1993, c. 539, ss. 187, 188, 1225, 1226; 1994, Ex. Sess., c. 24, s. 14(c).)
Consequently, the idea that speeches given prior to the January 6th insurrection, and especially that of Donald Trump, incited his followers to breach the Capitol is promoted by some. His words, according to some, promoted lawlessness and violence when he said, “We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.” However, he also said, “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”
He was acquitted in his second impeachment trial. However, the largest number of senators to ever vote for impeaching a president of their own party occurred with Richard Burr of North Carolina, Bill Cassidy of Louisiana, Susan Collins of Maine, Lisa Murkowski of Alaska, Mitt Romney of Utah, Ben Sasse of Nebraska and Patrick Toomey of Pennsylvania joining Democratic Party senators in voting to convict Trump.
However, his provocative speech on January 6th continues to be an issue remaining front and center inn the house investigation of the riot. Members of the committee believe his words fit the felony level of the above statute, because he incited a riot that resulted in property damage exceeding $1,500.00 and caused injuries and death. Five people died in the insurrection. The police attempted to prevent the participants from entering the building as lawmakers fled the chamber and hid from the intruders. Other claims assert that he participated in advance planning of the riot.
As the house completes its committee hearings, and presents its findings, it will be very interesting to see how the idea of freedom of speech plays out, as it is likely to end up in the Supreme Court. A different court may come to an entirely different conclusion than past justices. Stay tuned for more on this topic. This issue will probably take many months to finally conclude, if it is ever finally resolved.
Essential Question
Was Donald Trump exercising freedom of speech on January 6th—or was he inciting a felony-level riot?
Background
The First Amendment to the U.S. Constitution guarantees five key freedoms:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
While these freedoms are foundational, they are not absolute. Over time, the courts have interpreted the limits of free speech—especially when speech may provoke violence or lawlessness.
Key Legal PrecedentBrandenburg v. Ohio (1969):
The Supreme Court ruled that inflammatory speech is protected under the First Amendment—even speech that advocates violence--unless:
Justice Holmes’ Viewpoint:
Holmes emphasized the importance of a “marketplace of ideas,” writing:
“The best test of truth is the power of the thought to get itself accepted in the competition of the market.”
Relevant Law: Inciting a Riot (General Statutes §14-288.2)
The Incident: January 6th, 2021On this day, then-President Donald Trump addressed supporters near the White House. His speech included:
“We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.”
However, he also stated:
“I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”
The Capitol was breached shortly after, resulting in:
Some members of Congress continue to argue that Trump’s speech met the legal definition of incitement under federal and state laws.
Discussion Questions
Activity OptionsA. DebateSplit the class into two sides:
Students prepare opening statements, present arguments, and “vote” on guilt or innocence.
C. Legal Analysis PaperWrite a short legal opinion using the Brandenburg precedent and §14-288.2. Address whether the speech is protected or criminal.
D. Supreme Court SimulationDivide students into “justices.” After reviewing facts and arguments, they vote and write a brief majority and dissenting opinion.
ConclusionThe January 6th case remains unresolved in public and legal discourse. Whether the speech was protected under the First Amendment—or crossed the line into criminal incitement—continues to shape discussions about democracy, accountability, and free expression in America.
Overview
The first Amendment to the Constitution guarantees freedoms relating to religion, expression, assembly, and the right to petition preventing Congress from promoting one religion over others or restricting an individual’s religious practices. It also guarantees freedom of the press and individual speech, and guarantees freedom of assembly if peaceful and the right to petition their government. The actual Amendment reads as follows: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Although the freedoms appear clear, the First Amendment is not absolute, but rather a dictum, which means that it expresses a principle that is given to interpretation, and therefore, may change depending upon the situation as the 1969 Supreme Court’s decision in Brandenburg vs. Ohio demonstrates. The Court protects inflammatory speech, including that promoting violence unless it “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” In their writings, Supreme Court Justices Holmes and Brandeis provided the foundation of decisions relating to freedom of speech in the 60’s and 70’s, and continue to take precedence today.
In his writings, Holmes asserts that combating offensive speech depends on freedom of ideas, stating “The ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.” Thus, more free speech counters offensive speech and all of the speech is Constitutional. The general statutes addressing inciting others to riot reads as follows:
§ 14-288.2. Riot; inciting to riot; punishments.
(a) A riot is a public disturbance involving an assemblage of three or more persons
which by disorderly and violent conduct, or the imminent threat of disorderly and violent
conduct, results in injury or damage to persons or property or creates a clear and present danger of injury or damage to persons or property.
(b) Any person who willfully engages in a riot is guilty of a Class 1 misdemeanor.
(c) Any person who willfully engages in a riot is guilty of a Class H felony, if:
(1) In the course and as a result of the riot there is property damage in excess of
fifteen hundred dollars ($1,500) or serious bodily injury; or
(2) Such participant in the riot has in his possession any dangerous weapon or
substance.
(d) Any person who willfully incites or urges another to engage in a riot, so that as a
result of such inciting or urging a riot occurs or a clear and present danger of a riot is created, is guilty of a Class 1 misdemeanor.
(e) Any person who willfully incites or urges another to engage in a riot, and such
inciting or urging is a contributing cause of a riot in which there is property damage in excess of fifteen hundred dollars ($1,500) or serious bodily injury, shall be punished as a Class F felon. (1969, c. 869, s. 1; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1, c. 179, s. 14; 1993, c. 539, ss. 187, 188, 1225, 1226; 1994, Ex. Sess., c. 24, s. 14(c).)
Consequently, the idea that speeches given prior to the January 6th insurrection, and especially that of Donald Trump, incited his followers to breach the Capitol is promoted by some. His words, according to some, promoted lawlessness and violence when he said, “We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.” However, he also said, “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”
He was acquitted in his second impeachment trial. However, the largest number of senators to ever vote for impeaching a president of their own party occurred with Richard Burr of North Carolina, Bill Cassidy of Louisiana, Susan Collins of Maine, Lisa Murkowski of Alaska, Mitt Romney of Utah, Ben Sasse of Nebraska and Patrick Toomey of Pennsylvania joining Democratic Party senators in voting to convict Trump.
However, his provocative speech on January 6th continues to be an issue remaining front and center inn the house investigation of the riot. Members of the committee believe his words fit the felony level of the above statute, because he incited a riot that resulted in property damage exceeding $1,500.00 and caused injuries and death. Five people died in the insurrection. The police attempted to prevent the participants from entering the building as lawmakers fled the chamber and hid from the intruders. Other claims assert that he participated in advance planning of the riot.
As the house completes its committee hearings, and presents its findings, it will be very interesting to see how the idea of freedom of speech plays out, as it is likely to end up in the Supreme Court. A different court may come to an entirely different conclusion than past justices. Stay tuned for more on this topic. This issue will probably take many months to finally conclude, if it is ever finally resolved.
Essential Question
Was Donald Trump exercising freedom of speech on January 6th—or was he inciting a felony-level riot?
Background
The First Amendment to the U.S. Constitution guarantees five key freedoms:
- Religion
- Speech
- Press
- Assembly
- Petition
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
While these freedoms are foundational, they are not absolute. Over time, the courts have interpreted the limits of free speech—especially when speech may provoke violence or lawlessness.
Key Legal PrecedentBrandenburg v. Ohio (1969):
The Supreme Court ruled that inflammatory speech is protected under the First Amendment—even speech that advocates violence--unless:
- It is directed at inciting or producing imminent lawless action, and
- It is likely to incite or produce such action.
Justice Holmes’ Viewpoint:
Holmes emphasized the importance of a “marketplace of ideas,” writing:
“The best test of truth is the power of the thought to get itself accepted in the competition of the market.”
Relevant Law: Inciting a Riot (General Statutes §14-288.2)
- A riot is a violent or disorderly gathering of 3+ people causing damage, injury, or clear danger.
- Class 1 Misdemeanor: Willfully inciting or engaging in a riot.
- Class F Felony: Incitement causes a riot resulting in:
- Property damage over $1,500
- Serious bodily injury
- Involvement of dangerous weapons
The Incident: January 6th, 2021On this day, then-President Donald Trump addressed supporters near the White House. His speech included:
“We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.”
However, he also stated:
“I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”
The Capitol was breached shortly after, resulting in:
- 5 deaths
- Dozens of injuries
- Extensive property damage
- Lawmakers fleeing the chamber
Some members of Congress continue to argue that Trump’s speech met the legal definition of incitement under federal and state laws.
Discussion Questions
- Based on the Brandenburg test, do you believe Trump’s speech qualifies as incitement? Why or why not?
- How does the inclusion of the phrase “peacefully and patriotically” affect the argument?
- What are the dangers of broadly interpreting or restricting speech under the First Amendment?
- How might a future Supreme Court rule differently from the one in 1969? Why?
- Do political leaders have more or less responsibility when exercising their right to free speech?
Activity OptionsA. DebateSplit the class into two sides:
- Side A argues Trump exercised protected free speech.
- Side B argues Trump incited a riot and should be held criminally responsible.
Students prepare opening statements, present arguments, and “vote” on guilt or innocence.
C. Legal Analysis PaperWrite a short legal opinion using the Brandenburg precedent and §14-288.2. Address whether the speech is protected or criminal.
D. Supreme Court SimulationDivide students into “justices.” After reviewing facts and arguments, they vote and write a brief majority and dissenting opinion.
ConclusionThe January 6th case remains unresolved in public and legal discourse. Whether the speech was protected under the First Amendment—or crossed the line into criminal incitement—continues to shape discussions about democracy, accountability, and free expression in America.