Can't we get a nationwide gag order against Trump's violent threats?

On Christmas Day in 1170, as the story goes, King Henry II, exasperated by his disputes with Thomas Becket, the Archbishop of Canterbury, said something along the lines of “Will no one rid me of this turbulent priest?” Days later, Becket was dead, murdered by knights who had heeded his majesty’s call. 

Future despots and mob bosses admired Henry’s example, and that would include Donald Trump — whether or not he knows the story — who was trained in the art of getting even by his father and later by notorious lawyer and fixer Roy Cohn, a despicable man who also ruined lives for his living.

As you’ve probably heard by now, this all-too-familiar tactic is called “stochastic terrorism,” a term often deployed over the past few years by Salon's Chauncey DeVega, among others: 

For at least the last six years, Donald Trump and the larger neofascist movement behind him have been using the propaganda technique known as stochastic terrorism, in which ‘dog-whistle’ and other coded appeals are used to encourage political violence. In itself, this is nothing new: Stochastic terrorism has been a key feature of right-wing media and the ‘conservative’ movement for several decades.

We could come up with other terms: “solicited terrorism,” maybe, or "leader hate speech” or “political mob-speak.” At the other end of the process, the unfortunate but predictable result is known as “scripted violence.”

Whatever we call it, we know how it works: Those who foment violence give themselves just enough room to deny any clear intent, or at least enough to fend off legal liability, and pretend to disapprove when someone acts on the obvious message, sometimes with lethal effect. 

During a Slate podcast discussion of the E. Jean Carroll case back in February, host David Plotz wondered about a shortfall within our legal system:

There’s something happening in the American system that is unsettling to me. And you see it with Trump, you see it with Alex Jones, you see it with Fox News, which is there’s a certain category of people or organizations for whom the benefits of being monstrous — in attacking people and causing people harm — outweighs the costs…. And the ability to put off the judgment makes it pretty easy. What Alex Jones has done in the face of the Sandy Hook judgments is disgusting and it’s also incredibly demoralizing. The incapacity of the American legal system to effectively punish him is really confusing to me.

We have laws about defamation of character, as Trump has discovered at great expense in the two lawsuits brought by Carroll, as well as about witness tampering. But what can we do about a shameless, coddled politician who not only regularly defames others but also encourages threats and violence against them with a smirk, using the cheap rhetorical tools of despots — including demonizing and dehumanizing so-called enemies — while leaving himself that tiny window of plausible deniability? 

Trump has repeatedly been hit with gag orders from judges in his numerous criminal and civil trials, including a broader order imposed in the Manhattan hush-money case that's finally supposed to go to trial this week. That resulted from Trump’s repeated social media harassment of Judge Juan Merchan and his daughter, who Trump claims is a Democratic operative out to get him. Predictably, Trump kept it up even after the gag order, causing a sitting federal judge to speak out, in highly unusual fashion, about the ex-president’s attacks on the rule of law.

Wouldn’t it be great — wouldn’t it be a sign of some return to civilization and order — if we could somehow impose a nationwide gag order on Donald Trump’s appeals to violence?

I’m not exactly kidding, although I’m also well aware of the potential or perceived First Amendment conflict. But here’s the thing: 1A, as we like to call it on the internet, clearly protects the rights of citizens to express their opinions, even (or especially) when they’re unpopular, obnoxious or offensive. It also protects freedom of the press, although that’s come under some pressure lately — and could come under a lot more if Trump returns to the White House. But I would argue that the framers understood that political leaders have a higher responsibility to society, and must meet a higher standard.

The First Amendment prohibits Congress from abridging free speech, as well as from establishing an official religion or limiting religious liberty. The Supreme Court plays its role in interpreting what constitutes protected speech and religious liberty (and, of late, they’ve been quite expansive about the latter). What most people in Europe and around the world would consider hate speech has largely been protected by the court. 

As historian Joseph J. Ellis has noted, John Adams was worried about an oligarchy of wealthy families with little virtue seizing power. Thomas Jefferson wrote of his fear that the U.S. could devolve into a “tinsel democracy” dominated by privileged people unworthy to hold power. Yahtzee!

First Amendment: A "demagogue carve-out"?

With the unanticipated arrival of a deeply troubled and shameless leader to the highest office, we need the Supreme Court — someday, perhaps, with a new set of justices — to consider a new category of inflammatory language, or “fighting words.” We might think of this as the “demagogue carve-out” to the First Amendment.

Trump finally found out he couldn’t get away with absolutely everything in the case of at least one woman he sexually assaulted, and he shouldn’t be able to get away with assaulting our democracy by threatening citizens who are simply performing their civic duties. Those he attacks repeatedly should be entitled to sue him, with a reasonable expectation that courts will take them seriously. 

The last time the Supreme Court ruled on inflammatory speech that might incite lawless behavior was in the landmark Brandenburg v. Ohio case of 1969. In an unsigned decision, the court overruled an appellate court’s application of Ohio’s “criminal syndicalism” statute to a Ku Klux Klan leader. The court cited the concept that the “marketplace of ideas” must remain free in order to self-correct. 

That Klan leader, Clarence Brandenburg, was an odious white supremacist who delivered a speech full of hateful fulminations. But he was not a public servant of any kind. Yes, even detestable speech of that kind should remain as free as possible. 

To stick with the marketplace metaphor, we might note that when spoiled produce, rotten meat or other unsafe goods are discovered in any marketplace, they are routinely removed as a public health hazard. We have laws governing food and product safety — which, admittedly, many Republicans would like to roll back — and we desperately need similar standards applied to political speech that is clearly intended to promote or inspire acts of violence. 

Trump’s trickle-down violence

Trump appears to endorse the failed Republican concept of trickle-down economics — but he’s an even bigger fan of what we might call trickle-down violence. Whenever he develops a new grievance with a new opponent, or just wants to divert attention from his own misdeeds, he mob-whistles to his troubled followers. Even when he’s explicitly called out for such mob-speak, he rarely retreats, telling his would-be thugs to "stand back and stand by."

Not only should Trump face charges for inciting his followers to stage an insurrection on Jan. 6, 2021, he and others like him should also be held accountable for encouraging his supporters to act against poll workers, prosecutors, judges and governors. Of course there must be genuine legal standards, beyond impressions or opinions: A preponderance of the evidence, a pattern of behavior, would have to indicate clear responsibility for tacitly encouraging violence.

Many of those arrested for invading the Capitol on Jan. 6 said they did so because their president asked them to. These were not “lone wolves,” in the sense often encountered with leader-directed terrorism; this was a pack of wolves lured to Washington by their "favorite president" (“Will be wild!”) and told what to do, a lot more explicitly than usual. Trump is singing their praises and calling them “hostages,” which may be as close as he gets to acknowledging responsibility: He summoned them, and he’s responsible for their criminal charges and possible incarceration. As is typical of a man who demands loyalty but gives none in return, he has exploited his loyalists over and over.

Trump’s demonizing and dehumanizing xenophobia has been on display for years, from his call for the execution of five young men of color wrongly convicted of a crime to his fairytale about Muslims in New Jersey celebrating the 9/11 attack to his infamous slur of Mexican immigrants as criminals, drug dealers and rapists. (As I have argued, a subconscious confession of sorts.) More recently, he has specifically echoed Nazi rhetoric about invaders “destroying the blood of our country” and suggested that some immigrants are not human.

History tells us this is precisely the kind of language that leads to people killing other people.

When Trump proclaims on his social media platform that Joe Biden, Jack Smith and various unnamed world leaders should “ROT IN HELL” (that was in his 2023 Christmas greeting!), he knows he may incite some troubled lone wolf out there to do something very bad. So do the rest of us. Beyond the embarrassing childishness, it’s essentially the same as calling for a “Second Amendment remedy.” If you don’t think that’s exactly inflammatory language, let’s call it “tinder and matches” language; he’s laying the groundwork for someone else to start a blaze. 

Trump understands perfectly well that there are several hundred million guns in this country, just as he knew that the mob he summoned to Washington in January 2021 was armed with various kinds of concealed or makeshift weapons. As we know, he demanded that metal detectors be removed. Former White House aide Cassidy Hutchinson testified that Trump simply said, “They’re not here to hurt me.”  

Weaponizing the First Amendment

The right would like you to believe the First Amendment has no limits, at least when applied to them. But it was never intended to allow for lies and invective, especially coming from the government itself. When you read the drafts of the clause (originally by James Madison), you can see that the intent was to protect the speech, primarily or exclusively, of ordinary citizens and members of the press. Judges who call themselves “originalists” or “textualists” should note that Jefferson “suggested to Madison that the free speech-free press clause might read something like: The people shall not be deprived or abridged of their right to speak, to write or otherwise to publish anything but false facts affecting injuriously the life, liberty, property, or reputation of others or affecting the peace of the confederacy with foreign nations” [my emphasis].

In other words, a politician or elected official who feels unjustly attacked in the press or in the courts is entitled to respond in civil fashion or through political debate, but not through insinuations that serve to spur violent attacks against the press, the judiciary or other individuals. Nearly every day, Trump defames the rule of law, numerous public officials, the institutions of democracy and the country itself. Doesn’t saying  that the press is "the enemy of the people” put journalists at risk? His running claim that “Democrats are destroying this country" would be hilarious psychological projection if it weren’t so dangerous. Yes, he has the constitutional right to say despicable and divisive things in many contexts. But no political leader should be able to threaten those who are doing the essential work of democracy.

Want a daily wrap-up of all the news and commentary Salon has to offer? Subscribe to our morning newsletter, Crash Course.

We need new limitations on political mob speech by public servants to protect other public servants, especially election workers, teachers and librarians, school board members, prosecutors and judges, sitting governors and members of Congress (as well as their family members) — those who quietly and resolutely constitute the very fabric of our society.

I don’t claim that this “demagogue carve-out” would be easy to put into effect, and I certainly don’t claim that the Supreme Court under John Roberts is likely to embrace any such action. (The current justices are likelier to move in the opposite direction.) In the same Slate podcast mentioned above, journalist Emily Bazelon was clear about the First Amendment issues and the unique problem of this mob-speak:

The attack problem is about speech. If your method of attack involves speech, and we want to continue to give broad protections for speech, we have defamation as a tool against that. But what we don’t have a really good way of grappling with is setting a whole mob after people — it’s all the other people who you instigate who then can truly intimidate, threaten, make people’s lives miserable. That exponentially multiplying factor is not something, I think, that we have figured out how to deal with within the legal system. And there would really be a downside to trying to address it more, because then you’d be chilling a lot of speech. But there is no question that if you’re on the receiving end of the kinds of abuse, verbal abuse, that someone like E. Jean Carroll has taken — and you can think of other examples of this — it’s really destabilizing and harmful.

Could allowing people to sue for these kinds of mob-like statements open a proverbial can of worms? That’s possible, and the related legal and moral issues are undoubtedly complex. But Trump is gleefully opening barrels of vipers and shaking them loose just to see where they might go and whom they might bite. Those who hear their Dear Leader’s call are far too likely to show up armed to the teeth in our schools, our churches and our public squares.

I’m not proposing enacting new laws to restrict speech — that's exactly what the First Amendment says Congress may not do. I’m suggesting that citizens should have the right to sue prominent public figures for attacking them in a manner likely to lead to real harm. With the coming of Trump, there is effectively a new category of grievance: He is repeatedly telling lies about me, and his followers are making my life a nightmare.

This is closely akin to the common-sense gun regulations most Americans want: They want themselves and their loved ones to feel safe to go about their lives in the “pursuit of happiness,” a right that far outweighs those supposedly conferred by our antique Second Amendment. Similarly, our right to do the basic work of democracy without a public bully with an outsized megaphone prompting his most unhinged followers to threaten us with violence should outweigh smirking, specious claims of freedom of speech. Based on his lifetime of privilege, Donald Trump believes he is immune from any form of prosecution for any reason. He should not be immune from consequences for his repeated use of stochastic terrorism.

I’ve been working on this article for several weeks, and have constantly been compelled to update it to include the latest examples of Trump’s winking (and not-so-winking) calls for violence: Judge Merchan’s new gag order, Trump’s refusal to abide by it, his false posts about Merchan’s daughter, his reposting of an image depicting Joe Biden hogtied in the back of a pickup. Then, in yet another social media rant about Merchan, Trump sounded almost exactly like King Henry: “How many Corrupt, Biased, Crooked Joe Biden-”Protection Agency” New York Judges do I have to endure before somebody steps in?”

Maybe he does know the story after all.