Brandenburg v. Ohio

The Landmark Klan Free-Speech Case Behind Trump’s Impeachment Defense

Though Trump’s impeachment is not a criminal trial, his lawyers in their legal briefs referenced Brandenburg v. Ohio, arguing that Trump didn’t direct his supporters to attack the Capitol.

Impeachment Trial May Hinge on Meaning of ‘Incitement’

Although Trump's second impeachment trial may ultimately be decided by political considerations, the legal question of his culpability for incitement hinges on the question of when speech crosses a line to encouraging action and whether an impeachment trial is governed by different standards of proof than a criminal trial. 

A First Amendment Case that May be the Key to Trump's Impeachment Trial

by Tony Mauro

A First Amendment researcher offers a brief primer on Brandenburg v. Ohio, a case which Trump's legal supporters argue shields his January 6 rhetoric from criminal sanction because it was not purposefully aimed at inciting "imminent lawless action" – a claim critics say is blatantly contradicted by the subsequent actions of a mob a mile away from where Trump spoke.