Hillary may have the votes but Trump supporters have the guns. If Trump wins, there won’t need to be a coup. If he loses, there might be.
One man’s ugly feeling is another man’s freedom fighter.
TheHill: There’s an ugly feeling in the air. A Trump supporter in Ohio, Dan Bowman, tells a reporter, “If [Hillary Clinton’s] in office, I hope we can start a coup. She should be in prison or shot. That’s how I feel about it. We’re going to have a revolution and take them out of office if that’s what it takes. There’s going to be a lot of bloodshed. But that’s what it’s going to take.”
An ex-House member, Joe Walsh, tweets “On November 9th, if Trump loses, I’m grabbing my musket. You in?” Facebook, comment sections and message boards are full of angry people worrying that the vote will be “rigged” and discussing what they will do if the election is “stolen” from Donald Trump.
Free speech is an American’s birthright. But for the first time in living memory, ordinary people are pushing the boundaries of the First Amendment. Message boards, on-line comment sections and social media make the problem even worse. A lot of these people may think that they are just blowing off steam.
But when you are actually discussing using violence to overthrow the government or to interfere with an election, there’s a very thin line between “just talk” and criminal conspiracy. In the modern world, it is perfectly possible to become a member of a criminal conspiracy by “liking” a tweet.
Conspiracy is a little different than most crimes. The essence of conspiracy is an agreement by two or more people to do something illegal. Some conspiracy statutes require that at least one of the participants take some concrete step — known as an “overt act” — toward actually carrying out the conspiracy. Some statutes do not.
Conspiring to overthrow the government by force or to “prevent, hinder, or delay the execution of any law of the United States” by force is known as “Seditious Conspiracy” and is punishable by 20 years in federal prison. (18 USC 2384.) Just agreeing to use force to overthrow the government or to prevent Hillary Clinton from becoming President can be a federal crime, even if you never take action.
Because seditious conspiracy is essentially speech, the First Amendment comes into play. In a case called Brandenburg v. Ohio, the Supreme Court held that mere speech cannot be punished unless it is both aimed at producing “imminent lawless action” and it is likely to produce such action. So writing a book about the need for a revolution won’t pass this test. Someone exhorting a crowd to burn down City Hall very well might.
But “imminent” doesn’t necessarily mean “immediately.” Depending on the details of the conspiracy, lawless action might be “imminent” even if the conspirators understand that no violence might occur for weeks or months.
The Brandenburg test has a lot to tell us about this election. A year ago, people on message boards and social media discussing coups and revolutions were something of a joke. No one took them seriously, probably not even themselves, so all the talk was unlikely to produce action of any sort.
But the situation is different now and might be a lot different on November 9th if millions of Donald Trump’s supporters believe the election has been stolen from them. Tossing a burning match into a bucket of water isn’t likely to produce a fire. Tossing a burning match into a bucket of gasoline is.
