Remember, rights and liberties come first. It is her right to be stupid. We cannot use the benchmark of someone said something, and someone did something as a result, so the person that said something, is at fault (always).
For starters, let's agree on something. I believe that we agree that this is the correct test for incitement and it is correctly cited here. I'll also say that I'm not trying to call for any new exceptions to the first amendment here.
Anyhow, the two prongs of the Brandenburg test are these:
The speech is “directed to inciting or producing imminent lawless action,” AND
This speech was advising rioters who are actually rioting and who have tried already to destroy a particular statue on how to do so successfully.
The speech is “likely to incite or produce such action.”
They attacked the monument both nights. It wasn't merely "likely" to produce such action, it was directed towards helping people actually doing that action.
So... I have a hard time seeing how it doesn't meet the incitement standard. She was directing rioters on how to commit crimes during a riot. I'm sure there are plenty of items to quibble with there, like did the protesters actually listen to her or maybe they didn't have ropes so it doesn't count?
But this was clearly intended as a post inciting lawless action directed at an unlawful riot, so I believe that she should have to make that sort of argument via her lawyer, from the defendant's chair in court.
I can see how a reasonable person might differ, maybe they don't think there's enough of a connection between her and the rioters or maybe they think the rioters were going to do that anyway or what have you. But I personally see this as rising to the standard of incitement.
She was directing rioters towards targets. Legal minutia aside, this is exactly the sort of speech the incitement exception is intended to target.
So... I have a hard time seeing how it doesn't meet the incitement standard.
Did you read the Brandenburg v. Ohio (1969) ? He literally stood in front of a group of clan members with inflammatory speech, and had his case overturned.
This lady directed them to destroy specific things and they acted on it within 30 minutes.
That sounds a lot more immanent and lawless to me than the facts in Brandenburg, where he merely said a bunch of racist things to KKK members and spoke vaguely about "revengeance" against persons unclear, without any specific target or any riot going on.
Now, you have a point that we might have to establish that some of those who participated in this listened to her, but that's a factual question that should be investigated by the police.
The fact that someone is intentionally directing rioters to do a specific illegal thing during a lawless riot and this lawless act is performed should be more than enough to investigate her for incitement.
I've written a few articles on this very subject.
You are require to satisfy two important questions to claim it is incitement, and it doesn't rise to that level. It is called the Brandenburg test.
https://www.mtsu.edu/first-amendment/article/970/incitement-to-imminent-lawless-action
Brandenburg v. Ohio (1969) https://mtsu.edu/first-amendment/article/189/brandenburg-v-ohio
https://www.law.cornell.edu/wex/brandenburg_test
Hess v. Indiana (1973) https://www.oyez.org/cases/1973/73-5290
You should read those. They are interesting.
Remember, rights and liberties come first. It is her right to be stupid. We cannot use the benchmark of someone said something, and someone did something as a result, so the person that said something, is at fault (always).
For starters, let's agree on something. I believe that we agree that this is the correct test for incitement and it is correctly cited here. I'll also say that I'm not trying to call for any new exceptions to the first amendment here.
Anyhow, the two prongs of the Brandenburg test are these:
This speech was advising rioters who are actually rioting and who have tried already to destroy a particular statue on how to do so successfully.
They attacked the monument both nights. It wasn't merely "likely" to produce such action, it was directed towards helping people actually doing that action.
So... I have a hard time seeing how it doesn't meet the incitement standard. She was directing rioters on how to commit crimes during a riot. I'm sure there are plenty of items to quibble with there, like did the protesters actually listen to her or maybe they didn't have ropes so it doesn't count?
But this was clearly intended as a post inciting lawless action directed at an unlawful riot, so I believe that she should have to make that sort of argument via her lawyer, from the defendant's chair in court.
I can see how a reasonable person might differ, maybe they don't think there's enough of a connection between her and the rioters or maybe they think the rioters were going to do that anyway or what have you. But I personally see this as rising to the standard of incitement.
She was directing rioters towards targets. Legal minutia aside, this is exactly the sort of speech the incitement exception is intended to target.
Also, for the second prong, we can point to this happening a mere 30 minutes later:
https://twitter.com/CharlieSigs/status/1267336627703119873
That certainly seems like incitement to immanent lawless action to me. UAB should be made to answer whether or not they will support this.
Lastly, it sure looks like they should have the ability to tack on some other charges here, e.g. 18 U.S.C § 2101 -
https://uncoverdc.com/2020/06/01/president-trump-declares-antifa-a-terrorist-organization/
Did you read the Brandenburg v. Ohio (1969) ? He literally stood in front of a group of clan members with inflammatory speech, and had his case overturned.
This lady directed them to destroy specific things and they acted on it within 30 minutes.
That sounds a lot more immanent and lawless to me than the facts in Brandenburg, where he merely said a bunch of racist things to KKK members and spoke vaguely about "revengeance" against persons unclear, without any specific target or any riot going on.
Now, you have a point that we might have to establish that some of those who participated in this listened to her, but that's a factual question that should be investigated by the police.
The fact that someone is intentionally directing rioters to do a specific illegal thing during a lawless riot and this lawless act is performed should be more than enough to investigate her for incitement.