Trump’s words are weapons; he should be prosecuted and disarmed.

Yesterday outside of the United States Capitol building, while Congress met to perform their responsibilities as elected representatives of a democratic nation, an angry man incited an angry mob to seditious acts. That man should be held responsible. His being the president of the United States is no excuse, nor is the idea of free speech.

Some people might say that since the United States enshrines free speech as a protected right in its Constitution, Donald Trump can say whatever he likes. However, this is false, based on Supreme Court rulings like Brandenburg v. Ohio. We can understand why if we consider a case famously discussed by philosopher John Stuart Mill, one of the most well-known advocates of free speech. He argued that people’s actions should be protected from government interference, and that includes speech, even if people say false things or have despicable opinions. However, there is an important exception: if our actions harm other people.

Speech is an act. It isn’t immune to prosecution.

Mill used an example to illustrate this exception, one we can apply to Trump’s speech yesterday near the Capitol Building. It’s the case of the corn-dealer and the angry mob. Trump fails Mill’s corn-dealer test. Regardless of whether his speech would ultimately be condemned in a court of law, we can condemn it as dangerous, irresponsible, and ask that it be prosecuted.

Cartoon showing a man dragged along by a rope round his neck by an angry mob.
19th century Food Riots in England

In On Liberty, Mill considers the opinion that corn-dealers are “starvers of the poor.” This was a real-life example. People in England had rioted before over prices being set too high. Whether or not the fault lay in the people selling corn, it was a view someone might hold.

And Mill thinks it’s fine to print that in a newspaper. But that kind of opinion, spoken in front of a corn-dealer’s home, before a mob of people, is speech that the government can interfere in.

An opinion that corn-dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn-dealer, or when handed about among the same mob in the form of a placard.

He doesn’t say it must be punished, but that it can, and that to do so would be just. Why?

Because some opinions, said in certain contexts, are understood not just as statements, but encouragements to act. If you are a teenager and your parents see that your room is a mess, they may say, “That room is a disaster.” They aren’t just making an observation. Especially if they go on to add, “I would hate for you to miss out on that party this weekend,” you will understand that they think you should clean up your room, pronto.

We understand unspoken commands all the time.

That’s Mill’s point for the corn-dealer case..

On the contrary, even opinions lose their immunity, when the circumstances in which they are expressed are such as to constitute their expression a positive instigation to some mischievous act.

Trump’s face on large screens before a crowd of people holding American flags. AP Photo/John Minchillo
Trump’s face appears on large screens before a crowd of people holding American flags, January 6, 2021. AP Photo/John Minchillo

If someone speaks in a certain time and place in a way that encourages people to act in a “mischievious” or dangerous way, then that speech isn’t protected. The government can — and many times should — prosecute that speaker.

Was Trump’s speech on January 6, 2021 the equivalent of saying “corn-dealers are starvers of the poor”? Let’s take a look.

Place.

The corn-dealer situation involves someone uttering an opinion takes place in front of the corn-dealer’s house. They are right there, within the reach of the angry mob. Trump’s speech happened on the Ellipse, in the heart of the U.S. capital, just a short walk away from where the US Congress building is, and where the House of Representatives was convening at that very moment.

People.

Mill’s case involves an angry mob of people — they are “excited” and, presumably, excited about corn-dealers. That’s why they’ve gathered there. Trump’s speech happened at a “Save America” rally, which was organized explicitly by people who were upset about the election. On their website, the organizers stated “Democrats are scheming to disenfranchise and nullify Republican votes. It’s up to the American people to stop it. Along with President Trump, we will do whatever it takes to ensure the integrity of this election for the good of the nation.”

What I’ve marked in italics are phrases showing intention to act. These people are upset and want to stop the certification of the votes. These are the people who Trump addressed.

Screen shot of one a tweet that one of the organizers of the rally posted, which was retweeted by Trump himself.

Speech.

In Mill’s example, the person in front of the angry mob just says “Corn-dealers are starvers of the poor.” They don’t say “Go get them!” or “We should hurt corn-dealers.” They simply state an opinion in front of excited people, in a context where that corn-dealer is around. But Mill’s point is that, in this place, such an opinion would be interpreted as more than just an opinion. Just like your parents saying your room is dirty isn’t just their opinion, this kind of speech motivates action.

Here’s what Trump said in front of this rally, this mob:

We took them by surprise and this year, they rigged an election. They rigged it like they’ve never rigged an election before…

All of us here today do not want to see our election victory stolen by emboldened radical left Democrats, which is what they’re doing and stolen by the fake news media. That’s what they’ve done and what they’re doing. We will never give up. We will never concede, it doesn’t happen. You don’t concede when there’s theft involved….

To use a favorite term that all of you people really came up with, we will stop the steal. Today I will lay out just some of the evidence proving that we won this election, and we won it by a landslide….

There’s never been anything like this. We will not let them silence your voices. We’re not going to let it happen. Not going to let it happen…

But this year using the pretext of the China virus and the scam of mail-in ballots, Democrats attempted the most brazen and outrageous election theft. There’s never been anything like this. It’s a pure theft in American history, everybody knows it….

An excited mob outside the Congress on January 6, 2021. Samuel Corum / MCT

In Mill’s view, all we need is an opinion like “The election is stolen” or “Congress is a thief of the people” along with an angry crowd near to the people being described, and that speech is no longer protected.

Trump’s words fail Mill’s corn-dealer test. They can (and should!) justly be prosecuted.

Trump did more than express an opinion. He also encouraged actions. He didn’t need to tell people to act violently in order to speak in a way that is irresponsible and subject to prosecution.

Cancelling his incitement?

Maybe you think that Trump cancelled the effects of his opinion because he told people to just march and cheer:

Now it is up to Congress to confront this egregious assault on our democracy. After this, we’re going to walk down and I’ll be there with you. We’re going to walk down. We’re going to walk down any one you want, but I think right here. We’re going walk down to the Capitol, and we’re going to cheer on our brave senators, and congressmen and women. We’re probably not going to be cheering so much for some of them because you’ll never take back our country with weakness. You have to show strength, and you have to be strong. We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated. I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard…

It’s true, he did tell the crowd they were going to “cheer” and be “peaceful” and “patriotic.” This is the hard question that courts have to address, when they apply tools like the Brandenburg test — did Trump intend to incite people to the actions they undertook? Does it matter that he mentions peace in between his strong language? After he makes these statements, then rambles a bit more about his conspiracy theories, he closes by repeating his opinions again, with reference to action. He says that he and the crowd should not allow people to do perform illegal acts, and then encourages a walk down to the Capitol (where, presumably, those illegal acts are being performed):

If we allow this group of people to illegally take over our country, because it’s illegal when the votes are illegal, when the way they got there is illegal, when the States that vote are given false and fraudulent information…

So we’re going to, we’re going to walk down Pennsylvania Avenue, I love Pennsylvania Avenue, and we’re going to the Capitol and we’re going to try and give… The Democrats are hopeless. They’re never voting for anything, not even one vote. But we’re going to try and give our Republicans, the weak ones, because the strong ones don’t need any of our help, we’re going to try and give them the kind of pride and boldness that they need to take back our country. So let’s walk down Pennsylvania Avenue. I want to thank you all. God bless you and God bless America. Thank you all for being here, this is incredible. Thank you very much. Thank you.

Whether Trump can be convicted for incitement is a legal question for prosecutors and courts. I am not a lawyer or legal scholar.

But Trump should be prosecuted for incitement, and his words should be looked at carefully along with the situation in which he spoke them, and the ensuing mob violence.

The excited mob storming the Congress building. Photo: Lev Radin/Pacific Press via ZUMA Wire.

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Assistant Professor of Philosophy, Yale-NUS College, Singapore. I work on language & knowledge in Indian philosophy.

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Malcolm Keating

Malcolm Keating

Assistant Professor of Philosophy, Yale-NUS College, Singapore. I work on language & knowledge in Indian philosophy.

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