Close call.

Photographer: Sara D. Davis/Getty Images

Trump's Russia Provocation Isn't Quite a Crime

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
Read More.
a | A

Only Donald Trump knows whether he was serious about asking Russia to hack into Hillary Clinton’s e-mail server, now in government hands, to find 30,000 emails that were erased as private. But let’s assume Vladimir Putin was listening. Did Trump commit a crime by inciting lawless action? Or are his words protected by the First Amendment?

Trump was probably making a political statement, trying to change the subject from a possible pro-Trump Russian hack of Democratic National Committee e-mails to Clinton’s own e-mail scandal. Political statements are ordinarily at the core of free-speech protection.

But even the protection of political speech has constitutional limits. According to the Supreme Court’s interpretation of the First Amendment, incitement of imminent lawless action isn’t protected if the speaker intends to produce the criminal act and is reasonably likely to do so.

A plausible case could be made that the Republican presidential nominee intends Russia or someone else to hack into the server, which would be a federal crime. He wants it to happen now, which is to say imminently.

And it seems more probable still that Trump’s words might find an eager audience in Putin’s Russia or elsewhere. In other words, it’s not absurd to suggest that his comments were intended to incite lawless action and might actually incite it.

Nevertheless, trying to prosecute Trump would probably still violate the First Amendment. The reason has to do with the definition of imminence -- and the context in which the Supreme Court framed the imminence standard.

The rule comes from a 1969 case, Brandenburg v. Ohio. The case involved prosecution of a Ku Klux Klan speaker under an Ohio law that made it a crime to advocate "the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.”

Before the Brandenburg decision, the prevailing constitutional rule regarding protection of criminal advocacy was the famous “clear and present danger” test articulated by Justice Oliver Wendell Holmes. In the Brandenburg case, the court made the test stricter. It no longer required only that speech created a clear and present danger of crime; it also required the presence of actual, identifiable people who were about to commit an unlawful act and were likely to do so as a result of the incitement.

The clear-and-present-danger test hadn’t required identifiable potential criminals ready to act. In the 1951 case of Dennis v. U.S.,  the court upheld the conviction of senior members of the Communist Party USA for advocating the violent overthrow of the government.

Under that old standard, Trump’s words might arguably have been punishable if a court found that they created a clear and present danger of lawbreaking.

That sort of imminence is lacking now. The Russian hackers are certainly out there -- but we don’t know who they are, so it wouldn’t be possible to prove that his words were likely to incite them to crime.

In an era of instant communications, the question of imminence is more complicated than it once was. Could someone be found guilty of inciting a flash mob by text message, even if he or she wasn’t present? The logical answer would seem to be yes, but there’s no case so holding.

In 2010, in the wake of Koran burnings in the U.S. that sparked outrage in the Muslim world, Justice Stephen Breyer drew public attention when he speculated that the global audience for speech might have changed the question of imminence.

Trump's provocation shows why Breyer’s speculation might prove too much. The candidate's comments might be as likely to produce an imminent lawless result as a Koran burning. But in both cases it would be difficult to prove the intimacy of the connection in a way that would qualify as imminence. 

For the moment, Trump is safe. That’s a good thing for the First Amendment. Whether it’s good for the country is another question.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Jonathan Landman at jlandman4@bloomberg.net