by Andrew P. Napolitano
All states have laws that prohibit assault and destruction of others’ property. States and the federal government also have laws that prohibit bystanders from encouraging others to engage in violence. The latter is known as incitement.
When violence has erupted in American streets between groups supporting President Donald Trump and those opposed to him — and he encouraged his supporters to be “much tougher” than the other side and to “hit back” — did his use of intemperate words incite violence?
The use of federal and state incitement laws has a long and sordid history, which nearly always ends with the punishment of those expressing an unpopular viewpoint. From the 1900s to the 1950s, the states and the federal government prosecuted people who did no more than utter words. The prosecutor argued that the words encouraged harm and therefore were a clear and present danger.