Professor Kevin O’Neill is quoted an article on First Amendment Watch on whether Donald Trump’s January 6 exhortation to his followers was an act of incitement that falls within the unprotected boundaries of Brandenburg v. Ohio — a 1969 Supreme Court decision that denies First Amendment protection to advocacy of imminent lawless action.

Professor O’Neill concludes that Trump is vulnerable to an incitement prosecution. He states, “Trump’s remarks were an incitement within the unprotected boundaries of Brandenburg — because he dispatched his followers directly and immediately to the Capitol, and he did so for a specific unlawful purpose: to interrupt the counting of electoral votes.” 

First Amendment Watch, an online news and educational resource about First Amendment issues, is a project of the Arthur L. Carter Journalism Institute at New York University.