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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone, and here comes the second impeachment trial of Donald Trump this time for incitement to insurrection and this time without Trump's own commentary on Twitter since they banned him as a risk to what? incite people again. Let's talk about how those two things intersect as we preview the trial, but also explore the social media context around it with Emily Bazelon, Yale Law School professor, New York Times magazine staff writer, author of the best-selling book Charged about prosecutor reform, and a member of the Slate's Political Gabfest trio. Maybe you saw Emily's Times Magazine article last week called Why Is Big Tech Policing Speech? Because the Government Isn't? Hi, Emily, always good to have you. Welcome back to WNYC.

Emily Bazelon: Thank you, Brian.

Brian: Can I ask you to start with your legal analyst hat on and tell us if this was a court of law and I realized, and I think most of our listeners realize impeachment is different, it's a political process, not a strictly legal one, but if this was a court of law, what would be required to prove incitement?

Emily: That's a great question. The answer is that if this were a criminal trial, the prosecutors would have to show that there was an imminent threat of unlawful action, and that President Trump had specific intent to cause that imminent unlawful action. In other words, you'd have to show that he meant to propel everybody into the Capitol and had the intent of disrupting the electoral vote count and of the violence.

Brian: The Democrats frequently cite Trump's words at the rally that immediately proceeded the riot where he was getting them ready to march to the Capitol, and said things like, "Fight like hell," and, "Be strong." As you know, Emily, politicians use those words all the time. He said, "March peacefully." The Republicans cite that line and play that clip consistently. How would terms like, "Fight like hell," have to be used to prove that he intended for them to commit acts of violence?

Emily: If we were in a regular court, the prosecutors would say, "If you look at this speech as a whole, it has many more fighting words in it than it does a reference to peaceful protest." They would say that you could tell based on Trump's previous communications, the lying about the stolen election, and other evidence, they would need some evidence that he knew that his supporters would understand that he said that peaceful line as a wink, wink, nod, nod, but that his real intent was to send them to the Capitol.

The real question would be what did he want to have happened at the Capitol? How would the prosecutors show that he intended them to disrupt the vote count? Would that be enough? Or would they also have to show that he intended them to loot and do violence?

Brian: The nod, nod, wink, wink is interesting. I'm thinking of trials of mob bosses where maybe they've got their communication systems down so well that the boss doesn't have to say, "Go throw Paulie Knuckles in the river." Just says, "I don't like Paulie Knuckles very much anymore," or something like that, nod, nod, wink, wink, but then you have to prove that. That's plausible deniability.

Emily: Yes. Then it would depend on what the jury thought was the most plausible reading of the evidence. When I was talking to First Amendment scholars about this question of could Trump really be convicted of incitement in court? remember there are no criminal charges against him, they said it would be tough, but that it was actually a close case. What's really at stake here to take a step back is that we have this very high bar for proving incitement. Specific intent to cause imminent unlawful action, that's hard to show.

The Supreme Court has set it up that way since the 1960s because we want to make sure that people who lead protests and use bellicose language don't routinely get drummed off to prison, much more of a threat of that happening to dissidence usually than to someone who was the president of the United States.

Brian: Exactly. Does incitement to riot legally need to involve an intent to have a crowd commit violence? Because we don't know if Trump really intended to have that crowd do what they did at the Capitol, or just riling them up to a point where that's a risk.

Emily: Yes, it does have to have a specific intent of the unlawful imminent action, which is different than just, "Go forth and I don't really care what you do." That would be a recklessness standard and that's not the current standard in the criminal law, but Congress can decide that recklessness in this context is enough.

Brian: Here's where I think they move potentially to intent even in an explicit way. Tell me what you think about this. This is a clip from Democratic Senator Chris Murphy on Fox News Sunday yesterday with Chris Wallace describing what I think might be a key to the trial, what Trump did and did not do once the riot began and he knew it was taking place. Murphy cites Trump's language at the rally and then-

Chris Murphy: Then as they were attacking the Capitol, he had a chance, as the insurrection was beginning to tell them to stand down. I was in the Senate chamber literally as those rioters were outside our doors while we were being locked down in the Senate chamber. Instead of sending out tweets saying that everybody should leave the Capitol, President Trump sent out a tweet attacking Mike Pence, the very person that those rioters were there to hang. Even as the riot was occurring, the president had a chance to turn it around, and instead, he incited it knowing what was happening at the Capitol.

I think the case is absolutely clear both in that rally at the White House and during the riot itself, the president was taking steps to make it worse, not better. There is, of course, reporting from inside the White House that suggests the president was slow-walking the response because he was very happy with what was happening over at the United States Capitol. Once all that evidence is put on, there'll be no choice, but to convict.

Brian: Connecticut Democratic Senator Chris Murphy with Chris Wallace on Fox News Sunday yesterday. Emily Bazelon is with us. How central do you think that might be to the trial? Could that be used in a criminal version passivity while he knows a riot in his name is taking place?

Emily: It will be quite central because for the members of Congress to whom this was happening in real-time, and for all of us at home who were watching, those moments ticking away when former President Trump really said nothing for a long time and then made very ambiguous statements really in most ways praising and affirming the rioters, that was a very disconcerting set of hours. Congress will want to remind everyone of it in the context of impeachment.

If this were a criminal trial, the prosecutors would try to bring in that evidence to say, "Look, this is further proof that the whole ideal long was laced with the threat of violence. Look, here's one data point for that. The person who we think incited this riot didn't try to call it off once he realized what was happening."

Brian: One more question down this lane and then we'll get to the social media piece. Could they use, again, in a criminal trial, and do you think they will in this political impeachment context, the words of other people at the rally on behalf of Trump who might've even been more directly inciting people than the president with his own words? Here, for example, is Rudy Giuliani.

Rudy Giuliani: If we're wrong, we won't be made fools, but if we're right, a lot of them will go to jail. [applause] Let's have trial by combat.

Brian: Trial by combat. That sounds like it's pretty inciting. Donald Trump Jr. said something similar that has also been played a lot in the media. Is that evidence?

Emily: As a free speech advocate, this makes me very nervous, the idea of holding one person legally responsible for the words that come out of somebody else's mouth. I would want a really high bar that Trump had the prepared remarks and he read them and signed off on them beforehand, which I can't imagine is true. You want to try to step back from this particular case.

If you're not a Trump supporter and you think, "This was terrible and he needs to be punished," that's fine, but you also need to think, "If this was another context, if this was a protest for a cause I support, would I want someone who organized that protest to get in trouble for something some other speaker said?" That's a really dicey proposition I think.

Brian: Listeners, on the evidence in the impeachment trial for incitement to insurrection or on Emily's article on the big tech companies policing speech because the government isn't or anything related for Emily Bazelon from The New York Times magazine and Yale Law School and the Slate Political Gabfest and the wonderful book Charged (646) 435-7280. How different do you think this impeachment trial will be from the first one because Trump can't tweet?

Emily: I think that makes a significant difference. This connects, of course, to talking about de-platforming. I think that the fact that Trump has lost his favorite megaphone on Twitter has actually really changed the public discourse. Without his Insta reactions to light up the TV screen, it's going to just be a more settled, calm set of proceedings in which there might be more time to actually absorb the evidence as opposed to the zany deliberately, provocative reaction to the evidence.

Brian: You suggested in the article that Twitter and Facebook and other platforms, speech restrictions raise First Amendment questions, yes, but not necessarily the ones Trump's support is usually site. What do you have in mind?

Emily: What I mean by that is these are private companies, and according to American law, that means they have zero responsibility to give people First Amendment rights on their platforms. They can ban hate speech, they can ban incitement to violence in a way that goes far beyond what the First Amendment would allow. Legally speaking, it doesn't matter that they have effectively become our public platforms because they set the rules.

The analogy I like is that they're really more like malls than they are like the public square because you go to a mall, you break the rules, there's a mall cop who can throw you out and the mall gets to decide what the standards are. That's what it's like on these online platforms. The question is, is that the right standard, given the role that they're playing right now in public conversation? or should we have some First Amendment protections? Is there some sort of oversight role for the government to play here which tends to make people very nervous because you're talking about regulating speech? Perhaps there are some models that could be useful to adopt.

Brian: About these big platforms as malls, a mall, as I know you know, it tends to be a limited enclosed space in the middle of a town or whatever, very limited. What we have with the giant platforms like Twitter and Facebook and Instagram are things that function more as the public square than any physical public square we could think of. Then to say the First Amendment doesn't apply, well they're in this gray area, at least in the function that they perform in society.

Emily: Right. Exactly. There's a tension here. The American First Amendment striction has a very libertarian bent in which once you're in this privately owned space, it's up to the private owner, how to handle that space. Now, we didn't always have it this way. This is a shift that happened in the 1970s. Before that there was, for example, a company town that arrested and prosecuted a Jehovah's Witness for distributing religious literature on the sidewalk. The Supreme Court said, "No, you can't do that. This company is, effectively, in the role of the government and so the First Amendment does protect their speech."

Since then, there's been a real turn away from that. I think it's become honestly quite foreign to think of the idea that the law could force Facebook or Twitter to carry speech they don't want to carry. The companies themselves in American law have First Amendment rights. That's how it goes. That's the conundrum here because we see how powerful these platforms are and how much speech happens on them and yet we've basically ceded to Mark Zuckerberg and other CEO's total control over how that platform operates.

Brian: Different than in other countries, your article centrally points out. Correct?

Emily: Correct. European countries have a different tradition and they worry more than we do about anti-democratic ideas spreading, and so they have been more willing to step in and do some regulation of the tech companies. They're tentative and wanting to make sure not to go in with a heavy hand and mess everything up, but they're willing to think about things, for example, the algorithms and how that really controls what isn't in our news feeds.

It's not like there's some pure world in which you just see whatever everybody happens to post. No, the companies are making a lot of decisions and they're making profit-driven decisions that often promote content that's quite hot and itself insightful. The Europeans are interested in looking at this question of, should there be some limits on how those recommendations work? Could the government hold companies to standards they set themselves? That's the soft steps towards regulation that the Europeans are more interested in than we are right now.

Brian: By the way, before we go to the phones, the word "insightful", I've been trying to avoid it when talking about speech that might incite other people to riot and rather saying, "Inciting. Speech that's inciting," things like that, which might not be grammatically correct. When we say something is insightful, we might confuse it with the other spelling, which means, "That's a good observation." Is that the word that you actually use in law, inciteful, I-N-C-I-T-E-F-U-L to refer to speech that incites to violence?

Emily: Yes. If you're writing it on the page, then it's not confusing in the same way, but when you say it you're exactly right. I hadn't even thought of that.

Brian: Oh, the burdens of doing radio. Jay in Bergen County, you're on WNYC with Emily Bazelon. Hi, Jay.

Jay: Hi. When deciding whether Trump's behavior incited the rioting of January 6th, don't we have to look at the political context and what politicians were doing in order to incite the kind of behavior that we saw over the summer with burning buildings, organizing rallies to raise money, and "If you get in trouble with the law we'll bail you out."? What could be more inciteful than that? On the press, we've seen burning buildings, we've seen cops being dragged down the street. We see precincts being ransacked, and politicians saying, "This is free speech in action and if they arrest you, we'll bail you out."

How could we possibly analyze what Trump's words did with a wink, wink, and a nod and throw them out of office, de-platform him and silence him and call him a-

Brian: Prevent him from running again.

Jay: Pardon me?

Brian: Go ahead. No, I said, and prevent him from running again, which is largely what's at stake here.

Jay: Prevent him from running again. There has to be a larger context here. How can you just ignore the context from just a few months ago?

Brian: That's a great point and one we've been talking about on the show. On other segments, I played exactly some of the historical clips that you refer to. We don't even have to go back as far, Emily, but it's useful to as the first Trump campaign where, like Jay says, he would tell people, "If you see hecklers rough him up and I'll pay your legal bills," or however, he exactly put it.

Even in interviews in the run-up to this election, he would be asked by Chris Wallace on Fox, for example, and others or I think it was Chris Wallace in the debate, one of the debates against Biden, "Do you promise a peaceful transfer of power if you're declared the loser?" He wouldn't promise it. Even by hedging, in that context, he's nodding and winking to people that he would condone violence so that becomes evidence as well. Agree?

Emily: It's a really interesting question how much you hold the speaker responsible for things they've said previously. I think we struggle with this. We all make these connections. I completely understand what you're talking about and what your caller brought up. If you're talking about legally actually convicting someone, either of impeachment or in a criminal court, how much do you want those previous instances to come in? How direct a connection do you want there to be? What kind of proof do you want that his followers were responding to these kinds of messages?

I actually think in President Trump's case, there's a lot of evidence and it's pretty clear, but I am wary of allowing for too loose a set of letting in this kind of evidence because again, most of the time, the people who are accused of inciting violence are not the powerful former president, they are dissidents, they're demonstrators. You just want to be careful about what kind of precedent you're setting.

Brian: We continue in a minute, we'll take more calls. I also want to ask you to go deeper on something you said a few minutes ago, basically suggesting that this might boomerang and hurt progressives and people of color as much or more as the president over time. Stay with us, Brian Lehrer with Emily Bazelon on WNYC.

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Brian Lehrer on WNYC with Emily Bazelon from the Yale Law School, New York Times magazine, author of the book on criminal justice reform called Charged, and a member of the big three in the Slate Political Gabfest podcast. Maybe you saw her article in The New York Times magazine last week, Why Is Big Tech Policing Speech? Because the Government Isn't. We're talking about all of this in the context of the beginning, tomorrow of President Trump's impeachment trial on incitement to riot. Lynn in Manhattan wants to cite another law professor from another esteemed university. Lynn, you're on WNYC. Hi.

Lynn: Hi Brian. Thank you. I actually worked for Larry Tribe's wife.

Brian: Harvard law professor, Laurence Tribe, just so people know. Go ahead.

Lynn: He's the foremost constitutional law authority in the country, if not the world, anyway, for our law. Anyway, he believes that this fellow, Chuck Cooper, is going to present to the Senate, but will probably grab the Republicans by their short hairs so that they will reconsider Rand Paul's, what he calls dangerously illogical position as the trial begins tomorrow. I totally agree with him. I've always had the highest respect for him and always been on the same pages.

Brian: What's Tribe's argument?

Lynn: He thinks Chuck Cooper when he's going to give this argument-

Brian: Is that one of Trump's lawyers? Forgive me.

Lynn: That I'm not sure of, but he's trying to present-

Emily: I can explain.

Lynn: -to the senators that Rand Paul's position is dangerously illogical. What are they left with? He lays it all out for them, and then they're just stuck in their position. They're like, "Come on. If Mitch McConnell can get off it, what's wrong with the rest of you?"

Brian: We certainly have Mitch McConnell having said the president contributed to this. We have Liz Cheney saying the president contributed to this. We even have Kevin McCarthy, the Republican leader in the house who is since crawling back into the Trump camp, saying out loud and on the House floor that the president contributed to the riot. Emily, you want to help pick this apart for the rest of the listeners? Who's Chuck Cooper? What Rand Paul position would that be about?

Emily: Yes, sure. Charles Cooper is a longstanding, prominent, conservative litigator. He, for example, attacked the Marriage Equality Statute in California years ago. He wrote an op-ed in the Wall Street Journal this weekend saying that he thought it was constitutional to impeach and convict a president when he was out of office. I think what your caller is referring to, is this a dispute among law professors, "Trump is gone. If impeachment is all about removal from office, what are we doing here?"

Most law professors and a lot of lawyers including now, Chuck Cooper, are saying, "Wait a second, there's a second reference in the constitution to the idea that impeachment can then disqualify someone from future office holding." Which suggests that the framers did think or certainly didn't rule out the idea of impeaching someone after they'd left. The idea is, we're starting to have some real conservative heavyweights weigh in on the side of the constitutionality of the impeachment trial and that will be helpful to the Democrats.

Brian: Abdul in The Bronx. You're on WNYC with Emily Bazelon. Hi, Abdul.

Abdul: Yes, sir. Good morning, gentlemen. My question is why not just let this go? As Pelosi said in the first impeachment, it's not worth it. How bad is prosecuting a freaking idiot like Trump? Just let him go away in the darkness. That's what he presented to us when he was a president. [crosstalk] focus on them all.

Brian: Yes. Go ahead. On the business of the country?

Abdul: Yes. Right.

Brian: Are you afraid also that this will give Trump center stage again, which might actually backfire on the causes that you care about?

Abdul: That's exactly what I told your screener. This is a calculated move by Trump to create the scenario where he would be in the picture in the limelight forever.

Brian: Abdul, thank you very much. Emily, now I have to ask you to take off your legal analyst hat and your social media expert hat and put on your political analyst hat even though you don't have your Gabfest colleagues around you. Talk about this from a political standpoint. Have you given this question thought? Definitely, people who hate Trump, who think Trump is really dangerous, are debating it among themselves. Does this and the likely acquittal give Trump more power over the next few years to influence radicalization in America?

Emily: It's such a great question. I'm really glad Abdul raised it. Obviously, we just don't know the answer, but when you remember what the position Congress was in when they made this decision about impeachment, they were responding to this sense of emergency about the Capitol assault and this feeling that they could not just let this go. The idea that a president would play this kind of role in the midst of trying to subvert the election results. For historic reasons, Congress, the Democrats in Congress, and some Republicans felt like they had to act.

Now, of course, it's a month later, Biden is waiting still to get some really important cabinet appointments through, there are all these questions. There's a lot of other business for Congress to be doing and yet we're going to go back in time by a month and yes, give Trump center stage. There's just a set of political trade-offs here. It is possible that this will add to Trump's political appeal among his base because it will be part of his claims of victimization and grievance and martyrdom. On the other hand, he's going to be the only president who was impeached twice.

We'll have to see how the politics of that play out. It will depend a lot on whether Trump continues to recede and keep quiet. I have to say, I wonder whether he's doing that tactically right now, pre-impeachment trial to make it easier for Republicans to vote not to convict him, but then he'll figure out how to re-appear.

Brian: That also leads me to the question that I said, going into the break that I wanted to ask you. That is, is there a risk from all of this, impeachment on the grounds of his speech, the way big tech is de-platforming him and certain others now, the new laws that Congress is considering passing, and maybe some state legislatures too to crack down on right-wing and white supremacist radicals who might potentially commit violence, that it would all boomerang and over the long run hurt people of color more, hurt people with progressive politics more as these kinds of intel laws post-9/11, and everything else have tended to do?

Emily: I tend to be someone who thinks that the pendulum has swung too far away from regulation and so I'm willing to have some risk and encourage some steps. One of the reasons I feel that way is looking back to the history of radio and television, broadcast TV, Congress regulated radio and broadcast TV, created a public interest obligation and made sure there would be diversity of ownership and local community control, especially of radio stations. It's part of why we have NPR and PBS. I look back at that and I think like, "Well, we did this pretty successfully for decades. Let's give it another try with these social media platforms."

There are plenty of people who disagree. I think when you look at the law of incitement in particular, which we were talking about earlier, there is a risk of going too far. There was a case in the last couple of years involving the Black Lives Matter activist DeRay McKesson, who was sued for his role in a protest in Baton Rouge. A cop who got injured in the protest sued DeRay. The idea was the only thing DeRay had said that was the alleged "Incitement" was this line where he said the police want protesters to be too afraid to protest.

That led to a years-long lawsuit, and it eventually got thrown out of court, but it was a real long threatening event. When you think to that kind of case, you think, "Maybe I don't want the law of incitement to get too easy to prosecute here."

Brian: What about an example that the Republicans will surely bring up in the trial because they bring it up on TV about every day of Maxine Waters? When there was all this outrage and a lot of demonstrations taking place against Trump's family separation policy at the border, there was an incident or two where protesters accosted Republicans like eating in a restaurant and things like that. She encouraged protesters too, "If you see somebody who's in any way responsible for this-" obviously, I don't have the exact quote I'm broadly paraphrasing, "-form a crowd, get in their face, put pressure on them." She certainly never said, "Commit violence." What if she were to tweet something like that in this new context?

Emily: That's a great example where I think we don't want politicians to call explicitly for violence, but there are some statements they make that are calling for an aggressive response. I would argue, we want to give them leeway, not to have to watch their words with a sort of hyper care in those contexts. Maxine Waters should be able to encourage people to form a crowd. Maybe you think that's a bad idea as a political tactic, but she should be able to say that.

When you go back and you read Trump's speech, this is where the particular phrases he uttered are-- I don't know how much they're going to matter to Congress, which the senators may have made up their mind. If we were in a real court of law, it would matter a great deal what the jury interpreted the actual phrases to mean.

Brian: On using the radio and TV act which really go back to the 1930s to regulate the internet, I think the premise of regulating radio and TV and forcing them to broadcast material in the public interest was scarcity. There were only so many TV channels. There were so many radio frequencies, only so many radio frequencies in the old media. Now with the internet, of course, there is no scarcity. There may be scarcity of attention, but an infinite number of people can throw up a website and start to say things.

Emily: Yes, you're right. We would need a different theory to create any kind of public interest obligation on the internet. Here's an idea. We currently grant broad immunity from civil lawsuits to internet service providers. A radio broadcast or a newspaper publisher that publishes a defamatory statement can get sued. Facebook cannot. Maybe we should leverage that immunity to get some kind of public interest performance from these platforms. In other words, you're totally right that scarcity was the theory for radio and broadcast TV but it's not the only way to create an obligation.

Brian: Scarcity, for people who don't understand the link there, as radio and television became so dominant in the public discourse if there were only relative few television stations and radio stations, those owners had immense power. The government decided that they should control them to act in some ways like presenting different points of view in the public interest. I think the closest that we can come to making the parallel case today, Emily, is that even in the marketplace of infinite websites, Facebook and Twitter, and just a few others have become so dominant that it's as if there was scarcity.

Emily: Exactly. We could use antitrust law as our tool here. We have a near-monopoly hold on social media in a lot of ways. There are lawsuits against Facebook coming out of the state attorney general's offices and the Department of Justice. Again, in trying to settle or resolve those lawsuits, you could see some way for the government to try to impose more public interest obligation on the companies.

Brian: Last phone call. Lou on Staten Island, You're on WNYC with Emily Bazelon. Hi, Lou.

Lou: Good morning, Brian. Thanks for taking my call. The question I want to ask is did Mr. Trump's speech not lead to action? Did his action not lead to actual harm? Since when do we use free speech or the argument of free speech to let criminals get away with their crimes? I thought the purpose of punishing crime was to prevent it from happening in the future. This man is not going to go away. His dependency that he's so unintelligent and doesn't know what he does and that the rest of us should go along with it.

Brian: Thank you, Lou. Emily, briefly on that and we're going to be out of time.

Emily: That is a really good formulation. What I would say is if you were in a court, you have to think when Trump said those words, did he know what would happen exactly? Did he know they were going to break the windows and storm in and potentially threatened members of Congress? Retrospectively, it's really clear that all those things happened, but you're supposed to analyze the intent to incitement from the position, the prospective before the violence unfolded, which is hard to do mentally, since we know it happened.

Brian: Your book Charged and some of your other writing is about restorative justice or at least includes sections on that. Is that applicable here in any way? I'm thinking about, the shoe was on the other foot now, it's these right-wing white supremacists who are being accused of the individual acts of violence in the riot and the insurrection. People understandably want the courts to throw the book at them. Is there any alternative to locking them up that would be restorative justice in any sense, in a case like this?

Emily: One question is, does every single person who walked into the Capitol that day need to be arrested? The organizers, the people who committed property damage or violence, I think we could probably all agree that's clear law-breaking, but everybody who walked in, do we want to set that precedent? Because some of those people may have gotten caught up in the moment. They may be people who could be persuaded to be more reasonable the next time.

That's a personal call. People have this instinct that some people feel like, "Throw the book at every single one of them," and other people think, "You know what? Prosecutors don't need to do that." If you don't want the prosecutors to throw the book at every protestor at a different kind of protest, you might want to think about why or why not you're applying the same standard in this case.

Brian: Alternatives to incarceration in Emily Bazelon's brain, even with this?

Emily: Yes. That's personally how I feel about it, but I have a sister who works for the DA's office in Philadelphia, and she had a different sense of it. We were just actually debating this ourselves. [laughs]

Brian: Okay. We're going to have to have the Bazelon sisters back on the show and hash it out so you can go peacefully to Thanksgiving by the end of this year. Emily Bazelon, thanks as always.

Emily: Thanks for having me.

 

 

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