Last Friday, a federal judge denied President Trump’s motion to dismiss a lawsuit alleging that he should be held liable for last year’s Capitol Hill riot. The gravamen of the plaintiffs’ case was that the ex-President’s speech to a crowd of his supporters prior to the disturbance was “directed to inciting or producing imminent lawless action and [was] likely to incite or produce such action” (the test laid down by Brandenburg v. Ohio). The judge’s explanation of why, in his opinion, Mr. Trump met those criteria is worth exploring, particularly at a time when freedom of speech, press and assembly are defunct, at least temporarily, north of our border. Here is the key paragraph of the opinion:
Finally, President Trump plays a game of what-aboutism, citing fiery speeches from Democratic legislators, including Plaintiff Waters, which he says likewise would not be protected speech if the court were to find, as it has, that the President’s is not. The court does not find such comparators useful. Each case must be evaluated on its own merits, as the court has done above. If the President’s larger point is that a speaker only in the rarest of circumstances should be held liable for political speech, the court agrees. . . . That is why the court determines, as discussed below, that Giuliani’s and Trump Jr.’s words are protected speech. But what is lacking in their words is present in the President’s: an implicit call for imminent violence or lawlessness. He called for thousands “to fight like hell” immediately before directing an unpermitted march to the Capitol, where the targets of their ire were at work, knowing that militia groups and others among the crowd were prone to violence. Brandenburg’s imminence requirement is stringent, and so finding the President’s words here inciting will not lower the already high bar protecting political speech. [citation and footnote omitted]
This appears to be the first ever use of “what-aboutism” in a reported opinion of a United States court. The term has become commonplace in political rhetoric. It describes a tactic employed by the U.S.S.R. during the Cold War and today by the Communist government that occupies part of China. “You say that we have oppressed, imprisoned and murdered millions of Uighurs. Well, what about your systemic racism?”
In that form, the argument is a simple tu quoque: You can’t criticize me, because you aren’t perfect yourself. To which the response is that the character of the critic has nothing to do with the validity of his criticism. If systemic racism in fact permeated American life, the genocidal treatment of the Uighurs would still be abhorrent.
But not every “what about” is a fallacy. The negative formulation of the Golden Rule, “Do not do unto others what you would not have others do unto you”, is a what-aboutist maxim. The moral intuition behind what-aboutism is that the same laws, moral or legal, ought to apply to everyone. Its opposite is “Show me the man, and I will show you the law”, Sir Walter Scott’s summation in his novel Old Mortality of the state of justice in Scotland in the late 17th Century.
The argument to which the judge in Thompson v. Trump was responding was for the uniform application of the law without regard to persons. Mr. Trump doesn’t argue that he should be let off because other people have committed similar offenses without being charged. His contention is that, if he is liable, there will be a precedent for holding others liable for the same conduct. Therefore, it is necessary to examine whether that outcome is consistent with the First Amendment. As law professor Jonathan Turley (a liberal who defends the free speech of people with whom he disagrees, a stance that is becoming rare on the Left) notes:
As rioting raged in Brooklyn Center, Minn. and nationwide in 2020, Congresswoman Waters went to Minnesota and told protesters there that they “gotta stay on the street” and “get more confrontational.” Others have used language very similar to Trump’s in declaring elections to be invalid (including Hillary Clinton calling Trump an "illegitimate president") or urging supporters to “fight” or “battle” against Republicans; Rep. Ayanna Pressley (D-Mass.) once said, “There needs to be unrest in the streets for as long as there’s unrest in our lives.” [links omitted]
The judge responds, “Each case must be evaluated on its own merits”, which is certainly true, but it is also true that the court’s reasoning must be capable of being applied to defendants not named Donald J. Trump. If he stepped outside the aegis of the First Amendment, does it still protect someone who urged protesters, some of whom were already burning down buildings, to “get more confrontational”?
It may be that President Trump’s speech was so much more inciteful of violence than Representative Waters’ that only his is rightly unprotected, but that isn’t an a priori truth, nor can serious analysis be waved away by uttering the magic word “what-aboutism”.
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