Incitement Frenzy Carries Free Speech Risks on All Sides | Opinion

The notion that the words of Donald Trump "incited" the January 6 Capitol riots is no stray political barb. We're about to be treated to an impeachment drama based on that very claim, driving ideological opponents to their predictable corners.

But such an assertion carries daunting prospects for free speech on all sides. Distracted by the partisan energies of the moment, America is steeped in a debate over whether violent acts are traceable to the previous words of others, even if they contain no specific incitement language.

To "incite" is to encourage a person to commit a crime. No perusal of Trump's remarks that morning can find any explicit encouragement of lawless behavior. But in order to bolster an article of impeachment, the president's accusers say we no longer need an actual, clear call to illegal action. They point to the sharpness of the rhetoric and the frustrations of Trump's base, claiming he must have foreseen the riots.

To be clear, incitement is usually something one can perceive as it happens. "Let's go set fire to downtown," "You should throw bricks through police headquarters" or "I want you to riot inside the walls of the Capitol" would be incitement on a silver platter. Granted, not all actionable prosecutions contain such blunt evidence. There is a murky area where one might fairly ask if certain words contained a call to criminal behavior.

Consider the infamous words of California representative Maxine Waters from the summer of 2018, when she issued recommendations to followers regarding members of the Trump administration: "If you see anybody from that Cabinet in a restaurant, in a department store, at a gasoline station, you get out and you create a crowd and you push back on them and you tell them they're not welcome."

Rep. Waters remained a free woman in the days following what looked—to my untrained eye—like a directive to greet political opponents with public verbal assault at the very least. One wonders whether, if someone had punched a cabinet secretary the following day, Waters' Democratic colleagues would insist on the same definition of "incitement" that they do today.

No such attack occurred. But the congressional baseball shooting did, a year earlier, when a Bernie Sanders devotee sought to assassinate as many Republicans as he could on a baseball practice field. Sanders has never been shy in his condemnation of conservatives (and Trump in particular) as racist, sexist homophobes whose policies are catastrophic for the poor and the planet. But was there ever a wave of sentiment claiming the blood of that shooting was on Sanders' hands?

Supporters of U.S. President Donald Trump fly a U.S. flag with a symbol from the group QAnon as they gather outside the U.S. Capitol January 06, 2021 in Washington, DC. The Republican Party of Texas has fired a staffer after he filmed himself outside the Capitol during the January 6 attack. Win McNamee/Getty

There was not, because we used to have a grasp on the difference between words and actions. We used to hold actual criminals responsible for their actual crimes rather than launch into a retroactive scapegoating rodeo, searching for anything anyone might have said in a search for possible accomplices.

In this time of heightened passions on various issues across the political spectrum, we need to rediscover the intellectual discipline to discern what does and does not amount to incitement. Protesters who set various American cities ablaze over the summer were surely aware of claims by athletes and Hollywood stars proclaiming that police are indiscriminately gunning for the nation's black citizens. Were those celebrities also guilty of incitement?

Is this the game we want to play? A provocative claim about police, like a provocative claim about election integrity, can carry tons of emotion. It is the job of every American to absorb such messages and stop short of violent reaction. From Black Lives Matter protests to the January 6 election challenge march, some failed spectacularly.

Crimes were committed by those who broke actual laws. Violence is a criminal act; so is specifically encouraging it. We never want to start down a road of criminalizing speech to score cheap political points. Free speech exists to protect precisely the kinds of things that might anger and repel us.

But debates are words. Riots are actions. We can recognize the point at which violence begins, and we should be able to assign blame without broadly assigning guilt by association. BLM protesters who did not torch buildings are not guilty of a crime. Neither are Trump supporters who marched to protest the electoral tabulation but did not invade the Capitol halls.

And most importantly, simply speaking words that are controversial, debatable, disturbing or even infuriating is not a crime. That is the definition of free speech, and it protects the views of all speakers and writers. There will always be people driven to violence, not because someone instructed it, but because they could not restrain themselves in this genuinely messy, challenging environment of American free speech. When this happens, the crime is committed by the violent, not by prior speakers they may have heard.

This truth is meant not merely to protect Donald Trump from impeachment, but to protect all present and future speakers of every persuasion from accusations meant to punish or silence. One of our most basic liberties should not be sacrificed on the altar of political revenge.

Mark Davis is a talk show host for the Salem Media Group on 660AM The Answer in Dallas-Ft. Worth, and a columnist for the Dallas Morning News and Townhall.

The views expressed in this article are the writer's own.