On January 6th, 2021, then-President Donald Trump decided to address an enormous crowd gathered at the Ellipsea 52 acre park about two-hundred yards south of the White House in Washington, D.C. Some have argued that Trump's speech on that fateful day incited some considerable number of his listeners to engage in a violent insurrection by storming the Capitol Building in an attempt to overturn the results of the 2020 presidential election. As the world watched, thousands of Trump supporters breached the walls of the Capitol Building, broke down doors, smashed windows, roamed the halls of the famous structure, and occupied the offices of some of the legislators, including Speaker Nancy Pelosi's office. In perhaps the most iconic image to come out of that historic event, one protestornaked from the waist up, covered in tattoos and red, white, and blue face paint, holding an American flag on a pole made to look like a spear, and wearing a bearskin head-covering with animal hornsentered the hollowed senate chamber and briefly climbed into the chair occupied moments before by the Vice President of the United States only to be escorted out of the chamber by a police officer.

After his speech concluded, President Trump returned to the White House where he remained safely ensconced as an anxious world watched events unfold at the other end of Pennsylvania Avenue. Some have argued that Mr. Trump is criminally liable for at least some of the events that took place at the Capitol on January 6th, because his speech of that same day "incited" the riot that took place.

This was not the first time Mr. Trump has been charged with incitement. On March 1, 2016 Ms. Kashiya Nwanguma attended a Trump rally that was held at the Kentucky International Convention Center in Louisville, Kentucky. She claims she was there to "peacefully protest" Mr. Trump's candidacy. At least one supporter of Mr. Trump, who was at the same rally, claimed that "protestors were holding up signs, chanting 'black lives matter' and pushing and shoving Trump supporters" (Trump, Motion to Dismiss, p. 2). At some point during the rally, Ms. Nwanguma and several other protestors werein the words of the Sixth Circuit"unceremoniously ushered out after then-candidate Donald J. Trump said, 'Get 'em out of here'" (Nwanguma v. Trump, Sixth Circuit, p. 2). After being "pushed and shoved" (in the words of the Sixth Circuit) by some Trump supporters as she was being escorted out of the Trump rally, Ms. Nwanguma decided to sue Mr. Trump on the theory that his speech at the rally "incited a riot" and thus caused injury to her.

For this assignment I want you to read the material related to the Nwanguma case and the Supreme Court opinion inBrandenburg. I then want you to listen to the 75-minute speech that Mr. Trump gave at the Ellipse on January 6th, 2021. After you have read all this material and listened to Mr. Trump's actual speech.

1. Under what circumstances did the Supreme Court say that speech could constitutionally be restricted inBrandenburg v. Ohio? State and explain theBrandenburg test for incitement.

2. Apply that test to Mr. Trump's January 6th speech and describe for me both the best argument that can be made as to why Mr. Trump's speech meets the test for incitement and the best argument that can be made as to why Mr. Trump's speech does not meet the test for incitement.

3.I want you to tell me which side in this debate is more persuasive. That is, I want you to tell me whether Mr. Trump's speech meets the test for incitement or does not meet the test for incitementand why, or why not.

4. I want you to step back and evaluate theBrandenburg test for incitement. Do you think this is a good test? Should it be revised in any way? If so, how?