Incendiary Public Statements in the Heat of the Moment

The tension swirling around the Derek Chauvin trial has abated for now, with a three-tiered guilty verdict. But that’s not what this essay is about. Instead, I wish to consider the public statements expressed by prominent politicians, and why they can be inappropriate, ill-advised, and border on the illegal in various contexts.

We have a fairly robust First Amendment, which reads:  “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The amendment expanded our freedoms; however, each of these rights has guardrails. My focus today is on 3 First Amendment aspects:

1. Freedom of peaceful assembly
2. Freedom of speech
3. Statements by public figures

Freedom of peaceful assembly

All too often with protests, some participants get carried away and unfortunately, transition into rioting, which pushes the protest into illegality. Many innocent protestors then become guilty by association. What’s never clear in those heated circumstances is the level of complicity on behalf of the “innocents” and individual judgments made by police to control the chaos.

The takeaway is that the right to protest evaporates when it infringes on the rights of others. That’s why protesters can’t legally block highways or topple or spray paint statues.

Freedom of speech

“You can’t yell ‘fire’ in a crowded movie theater and call it freedom of speech,” President Biden stated recently, illustrating constitutional limits (though his talk related to the Second Amendment). Conversely, you can, but with caveats.

The oft-repeated line is from Oliver Wendell Holmes’ decision in Schenck v. United States and prompted one of the most provocative violations of free expression in US history. The Wilson administration used the Schenk decision, to justify imprisoning anti-war activists for violating the Espionage Act of 1917.

Holmes wrote: “The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic.”

Schenck was, in essence, overturned by the Brandenburg v. Ohio decision, which established the standard we have today:  the First Amendment protects speech unless it is likely to incite “imminent lawless action.”  (Yelling “fire” in a theater does not necessarily cause imminent lawless action.)

Statements by public figures

Long preamble here, leading to recent public statements by Representative Maxine Waters during the Chauvin trial. The Hill reported on April 21:

“Rep. Waters ignited a firestorm of controversy by flying to Minnesota to tell protesters to remain in the streets and fight for “justice,” to be “more confrontational,” despite days of rioting, looting, and other violence. She said no verdict in the Chauvin trial would be accepted except a conviction for first-degree murder — a demand that might be a tad difficult to satisfy since Chauvin is not charged with first-degree murder. All of this as the jury headed off to deliberate.”

Some immediately noted that Waters single-handedly succeeded in undermining not just the Chauvin case, but her own case against former President Trump. Waters, one of several House members suing Trump for inciting violence on Jan. 6, is now his best witness against that lawsuit. While Waters accuses Trump of inciting violence and intimidating Congress, she is now being denounced for inciting violence and intimidating the trial court. 

We all know the “subtlety” with which the former President expressed himself, but he was not alone in stating troubling opinions during questionable times. Context matters a great deal. So does timing.

Like Richard Nixon whose public statement drew fire when he opined about the Charles Manson trial while it was underway, and Donald Trump about anything all of the time, the Tuesday before the Chauvin verdict, President Biden weighed in about the eventual outcome. He said he was "praying the verdict is the right verdict" and suggested there was strong evidence for the jury to consider while determining the former Minneapolis police officer’s fate. "It's overwhelming, in my view," Biden said in the Oval Office, where he was meeting with Hispanic lawmakers.

And let’s not even get into the very public decision made by the Minneapolis City Council in approving a $27 million settlement for the family of George Floyd, questionably timed during jury selection. Two jurors had to be removed because the city’s settlement timing distorted their objectivity. We can only speculate as to the thoughts on other jurors’ minds during the trial.

In these and numerous other instances, politicians are focused on their brands, wishing to look engaged as they address the issue du jour. However, they don’t consider the potential consequences of their statements. 

Did Biden really mean “the right verdict?” Of course not, because if there is a “right” verdict defined in advance, then let’s throw out our entire justice system based on “innocent until proven guilty.” I prefer we don’t.

Did Representative Waters intend to incite violence? Hard to tell. Encouraging protestors to “be more confrontational” is problematic at best, incitement at worst, considering the context. Could her statement be perceived as intimidating the jury, potentially tainting the objectivity of the trial, since the jury hadn’t yet decided and were not sequestered? Judge Cahill suggested as much when he chastised her comments.

As it turned out, the verdict many preferred was reached after 10 hours of deliberation by the jury, leading not to protests but celebrations, even beyond our shores.

We all have our opinions and are generally free to express them at will. So do elected officials. The difference is the size of their megaphone and relative power.

Our three branches of government have very specific roles. They’re designed to be a check on each other’s power, particularly the judiciary. Representatives from one branch of government trying to control, intimidate or influence the judiciary, or encourage others to do so, are highly inappropriate, at best.

So here we are. Limber up and exercise your First Amendment rights! This is an awesome forum of professionals in which to do so, and your megaphone is welcome.