(January 14, 2021 / JNS) As Donald Trump prepares to leave his presidency, consumed by fury and self-pity after his second impeachment, it may be worth considering whether his parting words to the marauders who destructively invaded the U.S. Capitol were constitutionally protected speech. According to Brandenburg v. Ohio (1969), the guiding Supreme Court ruling, speech is not protected if it constitutes “incitement to imminent lawless action.” But “mere advocacy” of violence, not “directed to inciting or producing imminent lawless action,” is, according to the court, legally permissible.
At the “Save America” rally preceding the violence, Trump urged his supporters to “fight much harder. … You have to show strength. … We will stop the steal.” In his concluding words, he proclaimed: “If you don’t fight like hell, you’re not going to have a country any more. … We are going to the Capitol … to try and give them back the kind of pride and boldness that they need to take back our country.” He said: “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.” He did not mention violence, nor did he advocate it.
The impeachment article adopted by the Democratic-controlled House of Representatives describes his speech as “inciting violence against the Government of the United States.” But did Trump’s words constitute “incitement to imminent lawless action”? Judges and law professors will be debating that question for some time to come. Their likely answer will be no. They might even reference The New York Times editorial on Jan. 12 acknowledging that Trump “may not have called directly” for the rioting and violence. If true, according to the Brandenburg ruling, there was no punishable incitement.
Less questionable, at least among Israelis and their supporters, is appreciation for Trump, who will leave office as Israel’s best presidential friend since Harry Truman recognized the fledgling Jewish state moments after it declared independence on May 14, 1948. Ever since, The New York Times and its Sulzberger publishers, Jerusalem reporters and columnists (Thomas Friedman fits in both categories) have formed a chorus of relentless criticism of Zionism and Israel.
For current Times Jerusalem bureau chief David Halbfinger, U.S. Ambassador to Israel David Friedman was the (problematic) power behind the Trump throne on matters Israeli. In a six-column article on Jan. 10, Halbfinger conceded that Friedman was “one of America’s most influential envoys.” He explored, clearly without pleasure, “the seemingly endless list of political giveaways bestowed upon Prime Minister Benjamin Netanyahu and his supporters on the Israeli right.”
Among the Friedman “giveaways” was recognition of Jewish settlements (in biblical Judea and Samaria) as part of Israel, not illegal impediments to the peace that Palestinians had rejected before the first settlement appeared. A “plum” for Israel, it was “widely perceived” (Halbfinger does not say by whom) as “a campaign gift” for Netanyahu. Friedman also strongly recommended the relocation of the U.S. Embassy from Tel Aviv to Jerusalem, thereby recognizing the ancient Jewish holy city, where King David reigned, as Israel’s capitol. Trump was persuaded. Friedman also believed that “under certain circumstances … Israel has the right to retain some, but unlikely all, of the West Bank.”
For liberal Jews, whether in Israel or the United States, that was a shanda.
Friedman’s access to Trump, wrote Halbfinger, “brought unusual power for an ambassador, which he exploited to press an approach intended to get the Palestinians to lower their expectations.” History will judge whether Friedman was the nefarious power behind the Trump throne on Israeli-Palestinian relations. More likely, he will be deservedly recognized as an unrelenting advocate for the security of the Jewish state.
Time will likely calm the Trump-phobic wave of fury that currently inundates House Speaker Nancy Pelosi’s Democratic minions—and, predictably, The New York Times. Donald Trump may be his own worst enemy, but he will likely be remembered as Israel’s most generous presidential friend. That is not nothing.
Jerold S. Auerbach is the author of Hebron Jews: Memory and Conflict in the Land of Israel and “Print to Fit: The New York Times, Zionism and Israel 1896-2016,” which was recently selected for Mosaic by Ruth Wisse and Martin Kramer as a “Best Book” for 2019.
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