Trump’s ‘thuggish’ posts on DA Bragg are protected: Experts

Former President Donald Trump announces he is running for president for the third time at Mar-a-Lago in Palm Beach, Fla., Nov. 15, 2022. (AP Photo/Andrew Harnik, File)

Former President Donald Trump’s “thuggish” tirades on Truth Social about the Manhattan district attorney investigating him are probably First Amendment-protected, legal experts explain.

When he wrongly predicted his arrest this past Tuesday, Trump called, in all capital letters, for his supporters to “protest” and “Take our nation back!” Some commentators saw similarities between that social media post and ones that preceded the Jan. 6th attack on the US Capitol. Two federal judges have since found that Trump’s speech about him before those riots may have amounted to incitement, advancing two lawsuits seeking to hold him liable.

Trump has only ratcheted up his rhetoric since then.

In one post, Trump shared a link to a far-right website that juxtaposed a picture of him wielding a baseball bat next to Manhattan District Attorney Alvin Bragg (D). He followed up that post with another post-midnight missive at 1:08 am ET, warning of “potential death & destruction” if he’s indicated.


Trump’s post on Truth Social with a baseball bat and Manhattan DA Alvin Bragg.

Trump’s incendiary rants sparked online speculation about the possible consequences, from criminal prosecution to immediate remand to jail, if indicated.

First Amendment experts advise anticipating consequences on the milder side of the spectrum.

“While this is obnoxious, none of it meets the Brandenburg test for incitement, nor is it a true threat,” explained attorney Ken White, better known by his legal name de plume Popehat. “It’s just, you know, colossally crude and thuggish.”

In the case of Brandenburg v. Ohio, the Supreme Court instructed that speech only rises to the level of incitement if it can cause “imminent lawless action.” Federal judges found that Trump arguably crossed this line before the Jan. 6th attack, falsely leading his supporters to believe the election had been stolen, inviting them to a “wild” protest in Washington, DC, and instructing them to descend upon the Capitol after his rally.

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