Jan. 6th was a desecration of our constitutional process and one of the most disgraceful days in our history.
However, it was a riot, not an insurrection.
Clinton posted her comment on X, declaring, “Five years ago today, Donald Trump urged his supporters to attack Congress and the Capitol over a proven lie.”
The comments mirror statements made by the J6 committee and others. The difference is that many of those statements were protected by members of Congress under the Speech and Debate Clause.
I previously wrote about how the J6 Committee in Congress routinely edited out Trump’s call to protest “peacefully” despite objections that it was intentionally omitting a material element to his speech.
Trump was never charged with inciting the riot despite pledges of Democratic D.C. Attorney General Karl Racine to investigate Trump for that crime.
The reason is simple. It was not criminal incitement and Trump’s speech was protected under the First Amendment.
The same, however, may be true with regard to Clinton’s posting. Her claim is clearly false. Trump did not urge his followers to attack Congress. He urged them to go to Congress peacefully to protest the certification of the election.
However, American tort law offers robust protections for free speech, particularly when related to political figures.
In New York Times v. Sullivan, the Supreme Court established the actual malice standard, requiring public officials to shoulder the higher burden of proving defamation. Under that standard, an official would have to show either actual knowledge of its falsity or a reckless disregard of the truth. That standard was later extended to public figures.
The court correctly viewed civil liability as creating a chilling effect on the free press, either by draining publications of funds or inducing a type of self-censorship. Imposing a high standard for proof of defamation, Justice William Brennan sought to give the free press “breathing space” to carry out its key function in our system.
The case established a higher standard of proof for defamation than simple negligence for public officials. The court believed that public officials have ample means to rebut false statements, but that it’s essential for democracy for voters and reporters to be able to challenge government officials.
There is also protection for opinion. The issue comes down to the meaning of “urge.” Merriam-Webster defines the word as including “stimulate or provoke” as well as “solicit.”
Clinton would claim that she considers the thrust of his comments as effectively urging the violence even if he did not directly call for violence. Many Democrats obviously share that view.
Many have made unsupported and at times ridiculous claims that are equally protected as opinion. For example, Harvard Law Professor Laurence Tribe has made a litany of such claims, including his declaration on MSNBC that President Donald Trump could be charged (“without any doubt, beyond a reasonable doubt, beyond any doubt”) with the attempted murder of former Vice President Michael Pence.
Ironically, while Clinton has called for crackdowns on people who she deems as spreading disinformation, she has been criticized for such false or misleading statements.
Nevertheless, Clinton’s posting would not make for a strong defamation case, and even if a court did not dismiss the case before trial, it would be challenging to secure a jury verdict on such subjective terms.