From the abstract for JoAnne Sweeny, Incitement in the Era of Trump and Unite the Right, Capital University Law Review, Forthcoming:
Incitement, a First Amendment doctrine that has long been relegated to the history section of law school case books, is now the centerpiece of two major lawsuits: one against Donald Trump for the violence that erupted in his Louisville, Kentucky rally, and one against the organizers of the fatal Unite the Right rally in Charlottesville, Virginia. Incitement, a long-recognized exception to the freedom of expression, has been rarely used except in times of political unrest. Unsurprisingly, then, as political unrest has re-emerged in the wake of Donald Trump’s presidential campaign, incitement has become relevant once again. However, the alleged incitement at these violent political rallies is largely dependent on the use of modern technology, including ubiquitous media reporting and the ease and anonymity of social media, and therefore presents an odd fit for the more traditional incitement definition stated in Brandenburg v. Ohio. For that reason, this article argues that the Trump rally in Louisville and the Unite the Right rally in Charlottesville show how incitement should evolve to include more context, and how that context will become essential to properly decide incitement cases going forward.